Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media, 60526-60598 [2020-20845]

Download as PDF 60526 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 214, 248, and 274a.12 [DHS Docket No. ICEB–2019–0006] RIN 1653–AA78 Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media U.S. Immigration and Customs Enforcement, Department of Homeland Security. ACTION: Notice of proposed rulemaking. AGENCY: In fiscal year 2018, the Department of Homeland Security (DHS or the Department) admitted over 2 million foreign nationals into the United States in the F academic student, J exchange visitor, and I representatives of foreign information media nonimmigrant categories. This is a testament to the United States’ exceptional academic institutions, cutting-edge technology, and environment that promotes the exchange of ideas, research, and mutual enrichment. Currently, aliens in the F, J, and I categories are admitted into the United States for the period of time that they are complying with the terms and conditions of their nonimmigrant category (‘‘duration of status’’), rather than an admission for a fixed time period. This duration of status framework generally lacks predetermined points in time for U.S. Citizenship and Immigration Services (USCIS) or U.S. Customs and Border Protection (CBP) immigration officers to directly evaluate whether F, J, and I nonimmigrants are maintaining their status and poses a challenge to the Department’s ability to effectively monitor and oversee these categories of nonimmigrants. Specifically, because nonimmigrants admitted in the F, J, and I classifications generally do not currently begin to accrue unlawful presence until the day after there is a formal finding of a status violation by USCIS or an immigration judge, they are often are able to avoid accrual of unlawful presence for purposes of statutory inadmissibility grounds of unlawful presence, in part, because they do not file applications or petitions, such as extension of stay, that would result in a formal finding. The Department accordingly is concerned about the integrity of the programs and a potential for increased risk to national security. To address these issues, DHS khammond on DSKJM1Z7X2PROD with PROPOSALS2 SUMMARY: VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 proposes to amend its regulations by changing the admission period of F, J, and I aliens from duration of status to an admission for a fixed time period. Admitting individuals in the F, J, and I categories for a fixed period of time will require all F, J, and I nonimmigrants who wish to remain in the United States beyond their specifically authorized admission period to apply for an extension of stay directly with USCIS or to depart the country and apply for admission with CBP at a port of entry (POE). This change would provide the Department with additional protections and mechanisms to exercise the oversight necessary to vigorously enforce our nation’s immigration laws, protect the integrity of these nonimmigrant programs, and promptly detect national security concerns. DATES: Written comments and related material must be submitted on or before October 26, 2020. ADDRESSES: You must submit comments on the proposed rule identified by DHS Docket No. ICEB–2019–0006, only through the following method: • Federal eRulemaking Portal (preferred): https://www.regulations.gov. Follow the website instructions to submit comments. Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or U.S. Immigration and Customs Enforcement (ICE) officials, will not be considered comments on the proposed rule and may not receive a response from DHS. Please note that DHS and ICE cannot accept any comments that are hand delivered or couriered. In addition, due to COVID–19, ICE cannot accept mailed comments whether paper or contained on any form of digital media storage devices, such as CDs/ DVDs and USB drives. Collection of information. You must submit comments on the collection of information discussed in this notice of proposed rulemaking to either DHS’s docket or the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA). OIRA will have access to and view the comments submitted in the docket. OIRA submissions can also be sent using any of the following alternative methods: • Email (alternative): dhsdeskofficer@ omb.eop.gov (include the docket number and ‘‘Attention: Desk Officer for U.S. Immigration and Customs Enforcement, DHS’’ in the subject line of the email). • Fax: 202–395–6566. • Mail: Office of Information and Regulatory Affairs, Office of PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 Management and Budget, 725 17th Street NW, Washington, DC 20503; Attention: Desk Officer, U.S. Immigration and Customs Enforcement, DHS. For additional instructions on sending comments, see the ‘‘Public Participation’’ heading of the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Sharon Hageman, Acting Regulatory Unit Chief, Office of Policy and Planning, U.S. Immigration and Customs Enforcement, Department of Homeland Security, 500 12th Street SW, Washington, DC 20536. Telephone 202– 732–6960 (not a toll-free number). SUPPLEMENTARY INFORMATION: This supplementary information section is organized as follows: Table of Contents I. Public Participation A. Submitting Comments B. Viewing Comments and Documents C. Privacy Act II. Executive Summary A. Purpose of the Regulatory Action B. Summary of the Proposed Regulatory Revisions C. Legal Authorities D. Costs and Benefits III. Background A. Regulatory History of Duration of Status B. Risks to the Integrity of the F, J, and I Nonimmigrant Classifications IV. Discussion of the Proposed Rule A. General Period of Admission for F and J Nonimmigrants B. Automatic Extension of Visa Validity at Port of Entry C. Extension of Stay (EOS) D. Transition Period E. Requirements for Admission, Extension, and Maintenance of Status of F Nonimmigrants F. Requirements for Admission, Extension, and Maintenance of Status of I Nonimmigrants G. Requirements for Admission, Extension, and Maintenance of Status of J Exchange Visitors H. Change of Status I. Classes of Aliens Authorized To Accept Employment V. Statutory and Regulatory Requirements A. Executive Orders 12866, 13563, and 13771: Regulatory Review B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act of 1996 D. Congressional Review Act E. Unfunded Mandates Reform Act of 1995 F. Paperwork Reduction Act G. Executive Order 13132: Federalism H. Executive Order 12988: Civil Justice Reform I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use J. National Environmental Policy Act (NEPA) E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules K. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments L. Executive Order 12630: Governmental Actions and Interference With Constitutionally Protected Property Rights M. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks N. National Technology Transfer and Advancement Act O. Family Assessment P. Signature khammond on DSKJM1Z7X2PROD with PROPOSALS2 I. Public Participation DHS encourages all interested parties to participate in this rulemaking by submitting written data, views, comments and arguments on all aspects of this proposed rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Under the guidelines of the Office of the Federal Register, all properly submitted comments will be posted to https:// www.regulations.gov as part of the public record and will include any personal information you have provided. See the ADDRESSES section for information on how to submit comments. A. Submitting Comments You must submit your comments in English or provide an English translation. The most helpful comments will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority supporting the recommended change. If you submit comments, please include the docket number for this rulemaking (ICEB–2019–0006), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and materials online. Due to COVID–19related restrictions, ICE has temporarily suspended its ability to receive public comments by mail. Instructions: To submit your comments online, go to https:// www.regulations.gov, and insert ‘‘ICEB– 2019–0006’’ in the ‘‘Search’’ box. Click on the ‘‘Comment Now!’’ box and input your comment in the text box provided. Click the ‘‘Continue’’ box, and, if you are satisfied with your comment, follow the prompts to submit it. DHS will post them to the Federal eRulemaking Portal at https:// www.regulations.gov and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 personal information that you provide in any voluntary public comment submission you make to DHS. DHS may withhold information provided in comments from public viewing that it determines is offensive. For additional information, please read the ‘‘Privacy and Security Notice,’’ via the link in the footer of https://www.regulations.gov. DHS will consider all properly submitted comments and materials received during the comment period and may change this rule based on your comments. B. Viewing Comments and Documents Docket: To view comments, as well as documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov and insert ‘‘ICEB–2019–0006’’ in the ‘‘Search’’ box. Click on the ‘‘Open Docket Folder,’’ and you can click on ‘‘View Comment’’ or ‘‘View All’’ under the ‘‘Comments’’ section of the page. Individuals without internet access can make alternate arrangements for viewing comments and documents related to this rulemaking by contacting ICE through the FOR FURTHER INFORMATION CONTACT section above. You may also sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published. C. Privacy Act As stated in the Submitting Comments section above, please be aware that anyone can search the electronic form of comments received in any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to DHS. The Department may withhold information from public viewing that it determines is offensive. For additional information, please read the Privacy and Security Notice posted on https://www.regulations.gov. II. Executive Summary A. Purpose of the Regulatory Action Studying and participating in exchange visitor and academic programs in the United States offers foreign nationals access to world-renowned faculty, cutting edge resources, state-ofthe art courses, and individualized instructional programs. Similarly, the United States fosters an environment that promotes the exchange of ideas and encourages open discussions when there are differences of opinions, which PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 60527 the United States also encourages by allowing foreign news and media members the same unimpeded access and opportunity to share in the constitutional freedoms of the press as domestic news and media members. These benefits have attracted hundreds of thousands of foreign nationals to the United States in the F academic student,1 J exchange visitor,2 and I representatives of foreign information media 3 categories. DHS values the benefits these nonimmigrants, in turn, bring to the United States. Unlike aliens in most nonimmigrant categories who are admitted until a specific departure date, F, J, and I nonimmigrants are admitted into the United States for an unspecified period of time to engage in activities authorized under their respective nonimmigrant classifications. This unspecified period of time is referred to as ‘‘duration of status’’ (D/S). D/S for F academic students is generally the time during which a student is pursuing a full course of study at an educational institution approved by DHS, or engaging in authorized practical training following completion of studies, plus authorized time to depart the country.4 D/S for J exchange visitors is the time during which an exchange visitor is participating in an authorized program, plus authorized time to depart the country.5 D/S for I representatives of foreign information media is the duration of his or her employment.6 For dependents of principal F, J, or I nonimmigrants, D/S generally tracks the principal’s period of admission so long as the dependents are also complying with the requirements for their particular classifications.7 Since D/S was first introduced,8 the number of F, 1 INA 101(a)(15)(F), 8 U.S.C. 1101(a)(15)(F). 101(a)(15)(J), 8 U.S.C. 1101(a)(15)(J). 3 INA 101(a)(15)(I), 8 U.S.C. 1101(a)(15)(I). 4 Statutory and regulatory requirements restrict the duration of study for an alien who is admitted in F–1 status to attend a public high school to an aggregate of 12 months of study at any public high school(s). See Immigration and Nationality Act (INA) section 214(m), 8 U.S.C. 1184(m); see also 8 CFR 214.2(f)(5)(i). 5 See 8 CFR 214.2(j)(1)(ii) (explaining the initial admission period) and (j)(1)(iv) (explaining that extensions of stay can be obtained with a new Form DS–2019). See also 22 CFR 62.43 (permitting responsible officers to extend J nonimmigrant’s program beyond the original DS–2019 end date according to length permitted for the specific program category). 6 8 CFR 214.2(i). 7 See 8 CFR 214.2(f)(3), (f)(5)(vi)(D) (discussing F– 2 period of authorized admission); 214.2(j)(1)(ii), (j)(1)(iv) (discussing J–2 authorized period of admission); INA 101(a)(15)(I), 8 U.S.C. 1101(a)(15)(I); 22 CFR 41.52(c); USCIS Policy Manual, 2 USCIS–PM K.2 (Apr. 7, 2020). 8 In 1985, when D/S was introduced for I and J nonimmigrants, there were 16,753 admissions in I 2 INA E:\FR\FM\25SEP2.SGM Continued 25SEP2 60528 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 J, and I nonimmigrants admitted each year into the United States has significantly increased. In 2019 alone, there were over a million admissions in F status, a dramatic rise from the 263,938 admissions in F status when the legacy Immigration and Naturalization Service (INS) shifted to D/S admission in 1978.9 Similar growth in the J population has also occurred over the past decades. In 2018, there were 611,373 admissions in J status, up over 300 percent from the 141,213 J admissions into the United States in 1985.10 Finally, there were 44,140 admissions for foreign media representatives in the United States in 2018, over 160 percent growth from the 16,753 admissions into the U.S. in 1985.11 DHS appreciates the academic benefits, cultural value, and economic contributions these foreign nationals make to academic institutions and local communities throughout the United States.12 However, the significant increase in the volume of F academic students, J exchange visitors, and I foreign information media representatives poses a challenge to the Department’s ability to monitor and oversee these categories of nonimmigrants while they are in the United States. During the length of their stay for D/S, a period of admission status, 141,213 admissions in J status, and 251,234 admissions in F–1 status. See 1997 Statistical Yearbook of the Immigration and Naturalization Service at https://www.dhs.gov/sites/default/files/ publications/Yearbook_Immigration_Statistics_ 1997.pdf (last visited Jan. 7, 2020). 9 In fiscal year (FY) 2019, there were 1,122,403 admissions in F–1 status. See DHS Office of Immigration Statistics (OIS) Legal Immigration and Adjustment of Status Report Data Tables (FY 2019), available at https://www.dhs.gov/immigrationstatistics/readingroom/special/LIASR (last visited Aug. 27, 2020). In fiscal year 2016, there were approximately 1.11 million F and J nonimmigrants residing in the United States. See DHSOIS Population Estimates, Nonimmigrants Residing in the United States: Fiscal Year 2016 (Mar. 2018), available at https://www.dhs.gov/sites/default/files/ publications/Nonimmigrant_ Population%20Estimates_2016_0.pdf (last visited Jan. 22, 2020). That same year, 48,405 aliens were admitted into the United States in I status. See DHS OIS 2018 Yearbook of Immigration Studies (Nov. 13, 2019) available at https://www.dhs.gov/ immigration-statistics/yearbook/2018 (last visited Jan. 29, 2020). 10 See DHS OIS Annual Flow Report, Annual Flow Report, U.S. Nonimmigrant Admissions: 2018 (Oct. 2019) available at https://www.dhs.gov/sites/ default/files/publications/immigration-statistics/ yearbook/2018/nonimmigrant_admissions_ 2018.pdf (last visited Jan. 22, 2020). 11 Id. 12 NAFSA: Association of International Educator’s latest analysis finds that international students studying at U.S. colleges and universities contributed $41 billion and supported 458,290 jobs to the U.S. economy during the 2018–2019 academic year. See https://www.nafsa.org/policyand-advocacy/policy-resources/nafsa-internationalstudent-economic-value-tool-v2. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 without a specified end date, these nonimmigrants are not required to have direct interaction with DHS, except for a few limited instances, such as when applying for employment authorization for optional practical training or for reinstatement if they have failed to maintain status. Admission for D/S, in general, does not afford immigration officers enough predetermined opportunities to directly verify that aliens granted such nonimmigrant statuses are engaging only in those activities their respective classifications authorize while they are in the United States. In turn, this has undermined DHS’s ability to effectively enforce compliance with the statutory inadmissibility grounds related to unlawful presence and has created incentives for fraud and abuse. Given these concerns, DHS believes that the admission of F, J, and I nonimmigrants for D/S is no longer appropriate. With this notice of proposed rulemaking (NPRM), DHS proposes to replace the D/S framework for F, J, and I nonimmigrants with an admission period with a specific date upon which an authorized stay ends. Nonimmigrants who would like to stay in the United States beyond their fixed date of admission would need to apply directly with DHS for an extension of stay.13 DHS anticipates that many F, J, and I nonimmigrants would be able to complete their activities within their period of admission. However, those who could not generally would be able to request an extension to their period of admission from an immigration officer. In addition, as proposed, certain categories of aliens would be eligible for shorter periods of admission based on national security, fraud, or overstay concerns but like all aliens with fixed admission periods, would have a specific date upon which they would be required to depart the United States or would need to apply to DHS to have their continued eligibility for F, J, or I status reviewed by immigration officers. DHS believes that this process would help to mitigate risks posed by foreign adversaries who seek to exploit these programs. Replacing admissions for D/S with admissions for a fixed period of authorized stay is consistent with most other nonimmigrant categories,14 would 13 See generally 8 CFR 214.1(c) (setting forth the general extension of stay (EOS) requirements applicable to most other nonimmigrants). 14 For example, see 8 CFR 214.2(a)(1) (setting forth a period of admission for the A–3 nonimmigrant classification); (b)(1) (period of admission for aliens admitted under the B nonimmigrant classification); (c)(3) (period of admission for aliens in transit through the United PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 provide additional protections and oversight of these nonimmigrant categories, and would allow DHS to better evaluate whether these nonimmigrants are maintaining status while temporarily in the United States. DHS does not believe such a requirement would place an undue burden on F, J, and I nonimmigrants. Rather, providing F, J, and I nonimmigrants a fixed time period of authorized stay that would require them to apply to extend their stay, change their nonimmigrant status, or otherwise obtain authorization to remain in the United States (e.g., by filing an application for adjustment of status) at the end of this specific admission period is consistent with requirements applicable to most other nonimmigrant classifications. These changes would ensure that the Department has an effective mechanism to periodically and directly assess whether these nonimmigrants are complying with the conditions of their classifications and U.S. immigration laws, and to obtain timely and accurate information about the activities they have engaged in and plan to engage in during their temporary stay in the United States. If immigration officers discover a nonimmigrant in one of these categories has overstayed or otherwise violated his or her status, the proposed changes may result in the alien beginning to accrue unlawful presence for purposes of unlawful presencerelated statutory grounds of inadmissibility under the Immigration and Nationality Act (INA). DHS believes this greater oversight would deter F, J, or I nonimmigrants from engaging in fraud and abuse and strengthen the integrity of these nonimmigrant classifications. The Department believes that the provisions of each new regulatory States); (e)(19) (periods of admission for most E nonimmigrants); (g)(1) (period of admission for the G–5 nonimmigrant classification); (h)(5)(viii) (9)(iii) and (13) (various periods of admission and maximum periods of stay for the H–1B, H–2A, H– 2B, and H–3 nonimmigrant classification); (k)(8) (period of admission for the K–3 and K–4 nonimmigrant classification); (l)(11)–(12) (periods of admission and maximum periods of stay for the L nonimmigrant classification); (m)(5), (10) (period of stay for the M nonimmigrant classification); (n)(3) (period of admission for certain parents and children eligible for admission as special immigrants under section 101(a)(27)(I)); (o)(6)(iii) and (10) (period of admission for the O nonimmigrant classification); (p)(8)(iii) and (12) (period of admission for the P nonimmigrant classification); (q)(2) (period of admission for the Q nonimmigrant classification); (r)(6) (period of admission for the R nonimmigrant classification); (s)(1)(ii) (period of admission for the NATO–7 nonimmigrant classification); (t)(5)(ii) (period of admission for the S nonimmigrant classification); and (w)(13) and (16) (period of admission for the CW–1 nonimmigrant classification). E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 amendment function sensibly independent of other provisions. However, to protect the Department’s goals for proposing this rule, DHS proposes to add regulatory text stating that the provisions be severable so that, if necessary, the regulations may continue to function even if a provision is rendered inoperable. B. Summary of the Proposed Regulatory Revisions DHS proposes the following major changes: • Amend 8 CFR 214.1, Requirements for admission, extension, and maintenance of status, by: Æ Striking all references to D/S for F, J, and I nonimmigrants; Æ Describing requirements for F and J nonimmigrants seeking admission; Æ Updating the cross reference and clarifying the standards for admission in the automatic extension visa validity provisions that cover F and J nonimmigrants applying at a port-ofentry after an absence not exceeding 30 days solely in a contiguous territory or adjacent islands; Æ Outlining the process for extension of stay (EOS) applications for F, J, and I nonimmigrants; Æ Specifying the effect of departure while an F or J nonimmigrant’s application for an EOS in F or J nonimmigrant status and/or employment authorization (and an associated employment authorization document (EAD)) is pending; Æ Providing procedures specific to the transition from D/S to admission for a fixed time period of authorized stay for F, J, and I nonimmigrants; and Æ Replacing references to specific form names and numbers with general language, to account for future changes to form names and numbers. • Amend 8 CFR 214.2, Special requirements for admission, extension, maintenance, and change of status, by: Æ Setting the authorized admission and extension periods for F and J nonimmigrants (with limited exceptions) up to the program length, not to exceed a 2- or 4-year period; Æ Listing the circumstances, including factors that relate to national security and program integrity concerns, when the period of admission for F and J nonimmigrants may be limited to a maximum of 2 years; Æ Outlining procedures and requirements for F–1 nonimmigrants who change educational levels while in F–1 status; Æ Providing limits on the number of times that F–1 nonimmigrants can change educational levels while in F–1 status; VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 Æ Decreasing from 60 to 30 days the allowed period for F aliens to prepare to depart from the United States after completion of a course of study or authorized period of post-completion practical training; Æ Proposing to lengthen the automatic EOS for individuals covered by the authorized status and employment authorization provided by 8 CFR 214.2(f)(5)(vi) (the H–1B cap gap provisions); Æ Initiating a routine biometrics collection in conjunction with an EOS application for F, J, and I nonimmigrants; Æ Limiting language training students to an aggregate 24-month period of stay, including breaks and an annual vacation; Æ Providing that a delay in completing one’s program by the program end date on Form I–20, due to a pattern of behavior demonstrating a student is repeatedly unable or unwilling to complete his or her course of study, such as failing grades, in addition to academic probation or suspension, is an unacceptable reason for program extensions for F nonimmigrants; Æ Providing that F nonimmigrants who have timely filed an EOS application and whose EOS application is still pending after their admission period indicated on Form I–94 has expired will receive an automatic extension of their F nonimmigrant status and, as applicable, of their oncampus employment authorization, offcampus employment authorization due to severe economic hardship, or Science Technology Engineering and Mathematics Optional Practical Training (STEM OPT) employment authorization, as well as evidence of employment authorization, for up to 180 days or until the relevant application is adjudicated, whichever is earlier; Æ Allowing F nonimmigrants whose timely filed EOS applications remain pending after their admission period has expired to receive an auto-extension of their current authorization for oncampus and off-campus employment based on severe economic hardship resulting from emergent circumstances under 8 CFR 214.2(f)(5)(v). The length of the auto-extension of employment authorization would be up to 180 days or the end date of the Federal Register notice (FRN) announcing the suspension of certain regulatory requirements related to employment, whichever is earlier; Æ Prohibiting F nonimmigrants whose admission period, as indicated on their Form I–94, has expired while their timely filed EOS applications and PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 60529 applications for employment authorization based on either an internship with an international organization, curricular practical training (CPT), pre-completion Optional Practical Training (OPT), or postcompletion OPT are pending to engage in such employment until their applications are approved; Æ Replacing D/S for I nonimmigrants with admission for a fixed time period until they complete the activities or assignments consistent with the I classification, not to exceed 240 days, with an EOS available for I nonimmigrants who can meet specified EOS requirements; Æ Codifying the definition of a foreign media organization for I nonimmigrant status, consistent with long-standing USCIS and Department of State (DOS) practice; Æ Updating the evidence an alien must submit to demonstrate eligibility for the I nonimmigrant category; Æ Clarifying that I and J–1 nonimmigrants, who are employment authorized with a specific employer incident to status, continue to be authorized for such employment for up to 240 days under the existing regulatory provision at 8 CFR 274a.12(b)(20), if their status expires while their timely filed EOS application is pending, whereas J–2 spouses, who must apply for employment authorization as evidenced by an EAD, do not have the benefit of continued work authorization once the EAD expires; Æ Striking all references to ‘‘duration of status’’ and/or ‘‘duration of employment’’ for the F, J, and I nonimmigrant categories; and Æ Including a severability clause. In the event that any provision is not implemented for whatever reason, DHS proposes that the remaining provisions be implemented in accordance with the stated purposes of this rule. • Amend 8 CFR 248.1, Eligibility, by: Æ Establishing requirements to determine the period of stay for F or J nonimmigrants whose change of status application was approved before the Final Rule’s effective date and who depart the United States, then seek readmission after the Final Rule’s effective date; and Æ Codifying the long-standing policy under which DHS deems abandoned an application to change to another nonimmigrant status, including F or J status, if the alien who timely filed the application departs the United States while the application is pending. • Amend 8 CFR 274a.12, Classes of aliens authorized to accept employment, by: E:\FR\FM\25SEP2.SGM 25SEP2 60530 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 Æ Striking references to ‘‘duration of status,’’ to Form I–539, Application to Extend/Change a Nonimmigrant Status, and to Form I–765, Application for Employment Authorization; Æ Updating the employment authorization provisions to incorporate the proposed revisions in 8 CFR 214.2. C. Legal Authorities The Secretary of Homeland Security’s (the Secretary) authority to propose the regulatory amendments in this rule can be found in various provisions of the immigration laws and the changes in this rule are proposed pursuant to these statutory authorities. Section 102 of the Homeland Security Act of 2002 (HSA) (Pub. L. 107–296, 116 Stat. 2135), 6 U.S.C. 112, and section 103(a)(1) and (3) of the Immigration and Nationality Act (INA), 8 U.S.C. 1103 (a)(1), (3), charge the Secretary with the administration and enforcement of the immigration and naturalization laws of the United States. Section 214(a) of the INA, 8 U.S.C. 1184(a), gives the Secretary the authority to prescribe, by regulation, the time and conditions of admission of any alien as a nonimmigrant, including F, J, and I nonimmigrant aliens. See also 6 U.S.C. 271(a)(3), (b) (describing certain USCIS functions and authorities, including USCIS’ authority to establish national immigration services policies and priorities and adjudicate benefits applications) and 6 U.S.C. 252(a)(4) (describing ICE’s authority to collect information relating to foreign students and exchange visitor program participants and to use such information to carry out its enforcement functions). Section 248 of the INA, 8 U.S.C. 1258, permits DHS to allow certain nonimmigrants to change their status from one nonimmigrant status to another nonimmigrant status, with certain exceptions, as long as they continue to maintain their current nonimmigrant status and are not inadmissible under section 212(a)(9)(B)(i) of the Act, 8 U.S.C. 1182(a)(9)(B)(i). Like extensions of stay, change of status adjudications are discretionary determinations.15 Also, section 274A of the INA, 8 U.S.C. 1324a, governs the employment of aliens who are authorized to be employed in the United States by statute or in the discretion of the Secretary. Finally, the INA establishes who may be admitted as F, J, or I aliens. Specifically, section 101(a)(15)(F) of the INA, 8 U.S.C. 1101(a)(15)(F)(i), established the F nonimmigrant 15 See INA 248(a), 8 U.S.C. 1258(a); 8 CFR 248.1(a). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 classification for, among others, bona fide students qualified to pursue a full course of study who wish to enter the United States temporarily and solely for the purpose of pursuing a full course of study at an academic or language training school certified by ICE, Student and Exchange Visitor Program (SEVP), as well as for the spouse and minor children of such aliens. See also INA 214(m), 8 U.S.C. 1184(m) (limiting the admission of nonimmigrants for certain aliens who intend to study at public elementary and secondary schools). Section 101(a)(15)(I) of the INA, 8 U.S.C. 1101(a)(15)(I), established, upon a basis of reciprocity, the I nonimmigrant classification for bona fide representatives of foreign information media (such as press, radio, film, print) seeking to enter the United States to engage in such vocation, as well as for the spouses and children of such aliens. Section 101(a)(15)(J) of the INA, 8 U.S.C. 1101(a)(15)(J), established the J nonimmigrant classification for aliens who wish to come to the United States temporarily to participate in exchange visitor programs designated by the DOS, as well as for the spouses and minor children of such aliens. Within DHS, ICE’s SEVP is authorized to administer the program to collect information related to nonimmigrant students and exchange visitors under various statutory authorities. Section 641 of The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104–208, 110 Stat. 3009–546, 3009–704 (Sep. 30, 1996) (codified as amended at 8 U.S.C. 1372) (IIRIRA), authorizes the creation of a program to collect current and ongoing information provided by schools and exchange visitor programs regarding F and J nonimmigrants during the course of their stays in the United States, using electronic reporting technology where practicable. Consistent with this statutory authority, DHS manages these programs pursuant to Homeland Security Presidential Directive-2 (HSPD–2), Combating Terrorism Through Immigration Policies (Oct. 29, 2001), as amended, https://www.gpo.gov/ fdsys/pkg/CPRT-110HPRT39618/pdf/ CPRT-110HPRT39618.pdf), and section 502 of the Enhanced Border Security and Visa Entry Reform Act of 2002, Public Law 107–173, 116 Stat. 543, 563 (May 14, 2002) (EBSVERA). HSPD–2 requires the Secretary of Homeland Security to conduct periodic, ongoing reviews of institutions certified to accept F nonimmigrants, and to include checks for compliance with recordkeeping and reporting requirements. Section 502 of EBSVERA PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 directs the Secretary to review the compliance with recordkeeping and reporting requirements under 8 U.S.C. 1101(a)(15)(F) and 1372 of all schools approved for attendance by F students within two years of enactment, and every two years thereafter. D. Costs and Benefits Currently, aliens in the F (academic student), J (exchange visitor), and I (representatives of foreign information media) categories are admitted to the United States under the duration of status framework. However, admitting a nonimmigrant for duration of status creates a challenge to the Department’s ability to efficiently monitor and oversee these nonimmigrants, because they may remain in the United States for indefinite periods of time without being required to have immigration officers periodically assess whether they are complying with the terms and conditions of their status. Nor are immigration officers required to make periodic assessments of whether these nonimmigrants present national security concerns. Under the D/S framework, these nonimmigrants are required to have direct interaction with DHS officials only if they file certain applications, such as when applying for employment authorization for optional practical training or for reinstatement if they have failed to maintain status, or if they are the subject of an enforcement action. To address these vulnerabilities, DHS proposes to replace D/S with an admission for a fixed time period. Admitting individuals in the F, J, and I categories for a fixed period of time would require all F, J, and I nonimmigrants who wish to remain in the United States beyond their specific authorized admission period to apply for authorization to extend their stay with USCIS if in the United States or if abroad then to apply for admission at a POE with CBP, thus requiring periodic assessments by DHS in order to remain in the United States for a longer period. This change would impose incremental costs on F, J, and I nonimmigrants, but would in turn protect the integrity of the F, J and I programs by having immigration officers evaluate and assess the appropriate length of stay for these nonimmigrants. The period of analysis for the rule covers 10 years and assumes the proposed rule would go into effect in 2020. Therefore, the analysis period goes from 2020 through 2029. This analysis estimates the annualized value of future costs using two discount rates: 3 percent and 7 percent. In Circular A– 4, OMB recommends that a 3 percent discount rate be used when a regulation E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules affects private consumption, and a 7 percent discount rate be used in evaluating a regulation that will mainly displace or alter the use of capital in the private sector. The discount rate accounts for how costs that occur sooner are more valuable. The NPRM would have an annualized cost ranging from $229.9 million to $237.8 million (with 3 and 7 percent discount rates, respectively). III. Background A. Regulatory History of Duration of Status i. F Classification khammond on DSKJM1Z7X2PROD with PROPOSALS2 Section 101(a)(15)(F)(i) of the INA, 8 U.S.C. 1101(a)(15)(F)(i), permits aliens who are bona fide students to temporarily be admitted to the United States solely for the purpose for pursuing a full course of study at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic language training program. Principal applicants are categorized as F–1 nonimmigrant aliens and their spouses and minor children may accompany or follow to join them as F– 2 dependents.16 From 1973 to 1979, F students were admitted for 1-year and could be granted an EOS in increments of up to 1-year if they established that they were maintaining status.17 However, on July 26, 1978, given the large number of nonimmigrant students in the United States at the time and the need to continually process their EOS applications, legacy INS proposed amending the regulations to permit F– 1 aliens to be admitted for the duration of their status as students.18 Legacy INS explained the changes would facilitate the admission of nonimmigrant students, provide dollar and manpower savings to the Government, and permit more efficient use of resources.19 On November 22, 1978, the final rule was published amending the regulations at 8 CFR 214 to allow INS to admit F–1 aliens for the duration of their status as 16 INA 101(a)(15)(F)(i)–(ii), 8 U.S.C. 1101(a)(15)(F)(i)–(ii); 8 CFR 214.2(f)(3). 17 See 38 FR 35425 (Dec. 28, 1973) (The period of admission of a non-immigrant student shall not exceed one-year.) 18 See 43 FR 32306 (Jul. 26, 1978). 19 See 43 FR 32306, 32306–07 (Jul. 26, 1978). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 students.20 The new rule became effective on January 1, 1979.21 Subsequently, the regulations addressing the admission periods for nonimmigrant students were amended four more times between January 23, 1981, and October 29, 1991.22 On January 23, 1981, the former INS issued a rule eliminating D/S for F–1 nonimmigrants and limiting their admission to a fixed period of admission, i.e., the time necessary to complete the course of study, with the opportunity for an EOS on a case-bycase basis.23 Legacy INS explained this was necessary because admitting nonimmigrants students for D/S resulted in questionable control over foreign students and contributed to problems in record keeping.24 On April 5, 1983, legacy INS reinstituted D/S, while addressing areas of concern identified after the 1978 implementation of D/S for nonimmigrant students.25 The amendments implemented new notification procedures for transfers between schools and new recordkeeping and reporting requirements for Designated School Officials (DSO).26 These amendments also limited D/S to the period when a student was enrolled in one educational level and required nonimmigrant students to apply for an EOS and, if applicable, a school transfer to pursue another educational program at the same level of educational attainment.27 On April 22, 1987, legacy INS refined the April 5, 1983, regulatory package, again amending regulations regarding F–1 students.28 Additional regulations explained which medical and academic reasons allowed F–1 students to drop below a full-time course of study and remain in status and clarified when F– 20 See 43 FR 54618 (Nov. 22, 1978) (The period of admission of a nonimmigrant student shall be for the duration of Status in the United States as a student if the information on his/her form 1–20 indicates that he/she will remain in the United States as a student for more than 1 year. If the information on form 1–20 indicates the student will remain in the United States for 1 year or less, he/ she shall be admitted for the time necessary to complete his/her period of study). 21 Id. 22 See 46 FR 7267 (Jan. 23, 1981), 48 FR 14575 (Apr. 5, 1983); 52 FR 13223 (Apr. 22, 1987); 56 FR 55608 (Oct. 29, 1991). 23 See 46 FR 7267 (Jan. 23, 1981). 24 Id. 25 See 48 FR 14575 (Apr. 5, 1983). 26 A Designated School Official (DSO) means a regularly employed member of the school administration whose office is located at the school and whose compensation does not come from commissions for recruitment of foreign students. See 8 CFR 214.3(l). 27 See 48 FR 14575, 84 (Apr. 5, 1983). 28 See 52 FR 13223 (Apr. 22, 1987). PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 60531 1 students must request an EOS or reinstatement.29 In 1991, the regulations were further revised to implement Section 221(a) of the Immigration Act of 1990 (IMMACT 90), Public Law 101–649, 104 Stat. 4978, which established a three-year offcampus program for F–1 students.30 In the 1991 Final Rule, legacy INS also clarified and simplified the procedures for F–1 students seeking EOS and employment authorization. This included giving DSOs authority to grant a program extension (and therefore an EOS) for in-status students with a compelling academic or medical reason for failing to complete their educational program by the program end date on their Form I–20.31 The rule required DSOs to notify legacy INS of the extension.32 In the rulemaking, legacy INS specifically agreed to allow DSOs to issue program extensions, explaining that ‘‘with the DSOs screening out ineligible students, the Service is satisfied that the purposes of the EOS can be effectively met through the notification procedure.’’ 33 Pursuant to the 1991 Final Rule, DHS has relied on DSOs to report student status violators, issue program extensions, and transfer students between programs and schools. ii. J Classification The J nonimmigrant classification was created in 1961 by the Mutual Educational and Cultural Exchange Act of 1961, also known as the FulbrightHays Act of 1961, Public Law 87–256, 75 Stat. 527 (22 U.S.C. 2451, et seq.), to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchanges. It authorizes foreign nationals to participate in a variety of exchange visitor programs in the United States. The Exchange Visitor Program regulations cover the following program categories: Professors and research scholars, short-term scholars, trainees and interns, college and university students, teachers, secondary school students, specialists, alien physicians, 29 Id. 30 See 56 FR 55608 (Oct. 29, 1991). I–20, Certificate of Eligibility for Nonimmigrant Student Status, is the document used by DHS that provides supporting information for the issuance of a student visa. Applicants (including dependents) must have a Form I–20 to apply for a student visa, to enter the United States, and to apply for an employment authorization document to engage in optional practical training. See SEVP’s web page, Form I–20, ‘‘Certificate of Eligibility for Nonimmigrant Student Status’’ at https://studyinthestates.dhs.gov/studentforms?form=Forms_I-20 (last visited Jan. 29, 2020). 32 See 56 FR 55608 (Oct. 29, 1991). 33 Id. 31 Form E:\FR\FM\25SEP2.SGM 25SEP2 60532 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 international visitors, government visitors, camp counselors, au pairs, and summer work travel.34 Prior to 1985, J exchange visitors were granted an initial admission for the period of their program up to one year.35 In 1985, the regulations were amended to allow J exchange visitors to be admitted for the duration of their program plus 30 days.36 This change from being admitted for a fixed period to D/S was implemented as part of a continuing effort to reduce reporting requirements for the public as well as the paperwork burden associated with processing extension requests on the agency.37 A prospective exchange visitor must be sponsored by a DOS-designated program sponsor to be admitted to the United States in the J nonimmigrant category and participate in an exchange visitor program. The DOS designated sponsor will issue a prospective J exchange visitor a Form DS–2019, Certificate of Eligibility for Exchange Visitor (J–1) Status. The DS–2019 permits a prospective exchange visitor to apply for a J–1 nonimmigrant visa at a U.S. embassy or consulate abroad or seek admission as a J–1 nonimmigrant at a port of entry. A J–1 exchange visitor is admitted into the United States for D/ S, which is the length of his or her exchange visitor program.38 34 See INA 101(a)(15)(J), 8 U.S.C. 1101(a)(15)(J), and 22 CFR 62.20–62.32. 35 See 8 CFR 214.2(j)(1)(ii) (1985). 36 See 50 FR 42006 (Oct. 17, 1985). 37 Id. 38 Form DS–2019, Certificate of Eligibility for Exchange Visitor (J–1) Status, is the document required to support an application for an exchange visitor visa (J–1). It is a 2-page document that can only be produced through the Student and Exchange Visitor Information System (SEVIS). SEVIS is the DHS database developed to collect information on F, M, and J nonimmigrants (see 8 U.S.C. 1372 and 6 U.S.C. 252(a)(4)). The potential exchange visitor’s signature on page one of the form is required. Page 2 of the current Form DS–2019 consists of instructions and certification language relating to participation. No blank Forms DS–2019 exist. Each Form DS–2019 is printed with a unique identifier known as a ‘‘SEVIS ID number’’ in the top right-hand corner, which consists of an ‘‘alpha’’ character (N) and 10 numerical characters (e.g., N0002123457). The Department of State’s Office of Private Sector Exchange Designation in the Bureau of Education and Cultural Affairs (ECA/EC/D) designates U.S. organizations to conduct exchange visitor programs. These organizations are known as program sponsors. When designated, the organization is authorized access to SEVIS and is then able to produce Form DS–2019 from SEVIS. The program sponsor signs the completed Forms DS–2019 in blue ink and transmits them to the potential exchange visitor and his or her spouse and minor children. J visa applicants must present a signed Form DS–2019 at the time of their visa interview. Once the visa is issued, however, the SEVIS record cannot be updated until the participant’s program is validated (‘‘Active’’ in SEVIS). The sponsor is required to update the SEVIS record upon the exchange visitor’s entry and VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 Extensions of J exchange visitor programs are governed by DOS regulations.39 If there is authority to extend a program, the exchange visitor program sponsor’s Responsible Officer (RO),40 similar to the DSO in the F–1 student context, is authorized to extend a J exchange visitor’s program by issuing a duly executed Form DS–2019.41 Requests for extensions beyond the maximum program duration provided in the regulations must be approved by DOS, which adjudicates these extensions. USCIS does not adjudicate these program extensions. iii. I Classification Section 101(a)(15)(I) of the INA defines the I classification as, upon a basis of reciprocity, an alien who is a bona fide representative of foreign press, radio, film, or other foreign information media who seeks to enter the United States solely to engage in such vocation, and the spouse and children of such a representative, if accompanying or following to join him. Nonimmigrant foreign information media representatives are currently admitted for the duration of their employment. They are not permitted to change their information medium or employer until they obtain permission from USCIS.42 From 1973 to 1985, aliens admitted to the United States in I nonimmigrant status were admitted for a period of 1 year with the possibility of extensions.43 In 1985, legacy INS amended the no corrections to the record can be made until that time. In addition, in the event a visa is needed for a dependent spouse or child, the system will not permit a new Form DS–2019 to be created until after the primary’s SEVIS record is validated. See 9 FAM 402.5–6(D)(1) (U) The Basic Form available at https://fam.state.gov/fam/09FAM/ 09FAM040205.html#M402_5_6_D (last visited Jan. 29, 2020). While applicants must still present a paper Form DS–2019 to DOS in order to qualify for a visa, the SEVIS record is the definitive record of student or exchange visitor status and visa eligibility. See 9 FAM 402.5–4(B) (U), Student and Exchange Visitor Information System (SEVIS) Record is Definitive Record, available at https:// fam.state.gov/FAM/09FAM/09FAM040205.html (last visited Jan. 29, 2020). 39 See 22 CFR part 62. These programs vary in length. For example, professors and research scholars are generally authorized to participate in the Exchange Visitor Program for the length of time necessary to complete the program, provided such time does not exceed five years. See 22 CFR 62.20(i)(1). And alien physicians, are generally limited to seven years. See 22 CFR 62.27(e)(2). 40 A Responsible Officer (RO) is an employee or officer of a sponsor who has been nominated by the sponsor, and approved by the Department of State, to carry out the duties outlined in 22 CFR 62.11. 41 See 22 CFR 62.43. A RO must be a citizen of the United States or a lawful permanent resident of the United States. See 22 CFR 62.2. 42 See 8 CFR 214.2(i). 43 See 38 FR 35425 (Dec. 28, 1973). See also 50 FR 42006 (Oct. 17, 1985), stating that prior to the publication of this rule, I nonimmigrants were admitted for one year. PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 regulations to allow nonimmigrant foreign information media representatives to be admitted for the duration of their employment.44 This change from a set time period of admission to admission for duration of employment for I nonimmigrants was implemented as part of a continuing effort to reduce reporting requirements for the public, as well as the paperwork burden associated with processing extension requests on the agency.45 Through its administration of the regulations authorizing I nonimmigrants admission for duration of employment, DHS currently admits all I nonimmigrants for D/S with the exception of those presenting a passport issued by the People’s Republic of China.46 B. Risks to the Integrity of the F, J, and I Nonimmigrant Classifications i. General Risks DHS welcomes F academic students, J exchange visitors, and I representatives of foreign information media, but it also acknowledges that the sheer size of the population complicates its oversight and vetting functions. Since legacy INS introduced D/S in 1979, the number of F nonimmigrant students admitted into the United States has more than quadrupled. Similarly, since D/S was introduced for J and I nonimmigrants in 1985, the number of exchange visitors admitted into the United States has more than quadrupled while the number of representatives of foreign information media has more than doubled.47 The Department uses the Student and Exchange Visitor Information System (SEVIS), a web-based system, to maintain information regarding: SEVPcertified schools; F–1 students studying in the United States (and their F–2 44 See 8 CFR 214.2(i); 50 FR 42006 (Oct. 17, 1985). 45 Id. 46 85 FR 27645 (May 11, 2020). Note that the requirements in the May 11, 2020 Final Rule do not apply to Hong Kong Special Administrative Region (SAR) or Macau SAR passport holders. This proposed rule updates the requirements to remove the exception for Hong Kong passport holders, who will be admitted in the same manner as those presenting a passport issued by the People’s Republic of China. 47 As noted above, in fiscal year (FY) 2016, there were approximately 1.11 million F and J nonimmigrants residing in the United States. See DHS Office of Immigration Statistics (OIS) Population Estimates, Nonimmigrants Residing in the United States: Fiscal Year 2016 (March 2018), [USCIS: see edits] available at https://www.dhs.gov/ sites/default/files/publications/Nonimmigrant_ Population%20Estimates_2016_0.pdf (last visited Jan. 22, 2020). In 2018, 48,405 aliens were admitted into the United States in I status. See DHS OIS 2018 Yearbook of Immigration Studies (Nov. 13, 2019) available at https://www.dhs.gov/immigrationstatistics/yearbook/2018 (last visited Jan. 29, 2020). E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules dependents); M–1 students enrolled in vocational programs in the United States (and their M–2 dependents); DOS-designated Exchange Visitor Program sponsors; and J–1 Exchange Visitor Program participants (and their J–2 spouses and dependents). Employees of educational institutions and program sponsors, specifically DSOs and ROs, play a large role in SEVIS. They are responsible for monitoring students and exchange visitors, accurately entering information about the students’ and exchange visitors’ activities into SEVIS, and properly determining whether the student or exchange visitor’s SEVIS record should remain in active status or change to reflect a change in circumstances.48 Under this framework, an academic student or exchange visitor generally maintains lawful status by complying with the conditions of the program, as certified by the DSO or RO. However, a program extension and an extension of an alien’s nonimmigrant stay are different. The Department believes it is appropriate for the DSO to recommend an extension of an academic program and an RO to recommend an extension of an exchange visitor program; however, an EOS involves an adjudication of whether an alien is legally eligible to extend his or her stay in the United States in a given immigration status and has been complying with the terms and conditions of his or her admission. The Department believes that the determinations of program extension and extension of stay should be separated, with the DSO’s and RO’s recommendation being one factor an immigration officer reviews while adjudicating an application for EOS. Changing to a fixed period of admission would give immigration officers a mechanism to make this evaluation at reasonably frequent intervals. Additionally, DHS expects this change would deter and prevent fraud, as a requirement to check-in directly with an immigration officer inherently is likely to deter some bad actors from exploiting perceived vulnerabilities in the F and J nonimmigrant categories. The same benefits of direct evaluation, better recordkeeping, and fraud prevention also would apply to the I population. ii. Risks to the F Classification While the F program provides enormous benefits to academic 48 8 CFR 214.3(g)(1), (g)(2) (detailing a DSO’s reporting requirements); 214.4(a)(2) (stating that failure to comply with reporting requirements may result in loss of SEVP certification). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 institutions and local communities, the Department is aware that the F–1 program is subject to fraud, exploitation, and abuse. Since 2008, multiple school owners and others have been criminally prosecuted for ‘‘pay-to-stay’’ fraud, in which school officials, in return for cash payments, falsely report that F–1 students who do not attend school are maintaining their student status.49 In some cases, convicted school owners operated multiple schools and transferred students among them to conceal the fraud.50 DHS is also concerned that DSOs at these schools were complicit in these abuses; some DSOs intentionally recorded a student’s status inaccurately,51 some issued 49 DOJ Press Release, ‘‘Operator of English language schools charged in massive student visa fraud scheme,’’ April 9, 2008, available at https:// www.justice.gov/archive/usao/cac/Pressroom/ pr2008/038.html (last visited Jan. 27, 2020); DOJ Press Release, ‘‘Owner/Operator and employee of Miami-based school sentenced for immigrationrelated fraud,’’ Aug. 30, 2010, available at https:// www.justice.gov/archive/usao/fls/PressReleases/ 2010/100830-02.html (last visited Jan. 27, 2020); ICE Press Release, ‘‘Pastor sentenced to 1 year for visa fraud, ordered to forfeit building housing former religious school,’’ June 13, 2011, available at https://www.ice.gov/news/releases/pastorsentenced-1-year-visa-fraud-ordered-forfeitbuilding-housing-former-religious (last visited Jan. 27, 2020); DOJ Press Release, ‘‘School Official Admits Visa Fraud,’’ Mar. 12, 2012, available at https://www.justice.gov/archive/usao/pae/News/ 2012/Mar/tkhir_release.htm (last visited Jan. 27, 2020); ICE Press Release, ‘‘Owner of Georgia English language school sentenced for immigration fraud,’’ May 7, 2014, available at https://www.ice.gov/news/ releases/owner-georgia-english-language-schoolsentenced-immigration-fraud (last visited Jan. 27, 2020); ICE Press Release, ‘‘3 senior executives of for-profit schools plead guilty to student visa, financial aid fraud,’’ (last visited Jan. 27, 2020); Apr. 30, 2015, available at https://www.ice.gov/ news/releases/3-senior-executives-profit-schoolsplead-guilty-student-visa-financial-aid-fraud (Jan. 27, 2020); ICE Press Release ‘‘Owner of schools that illegally allowed foreign nationals to remain in US as ‘students’ sentenced to 15 months in federal prison,’’ Apr. 19, 2018, available at https:// www.ice.gov/news/releases/owner-schools-illegallyallowed-foreign-nationals-remain-us-studentssentenced-15 (last visited Jan. 27, 2020). 50 ICE Press Release, ‘‘3 senior executives of forprofit schools plead guilty to student visa, financial aid fraud,’’ April 30, 2015, available at https:// www.ice.gov/news/releases/3-senior-executivesprofit-schools-plead-guilty-student-visa-financialaid-fraud (last visited Jan. 27, 2020). 51 DOJ Press Release, ‘‘Operator of English language schools charged in massive student visa fraud scheme,’’ April 9, 2008, see https:// www.justice.gov/archive/usao/cac/Pressroom/ pr2008/038.html; DOJ Press Release, ‘‘Owner/ Operator and employee of Miami-based school sentenced for immigration-related fraud,’’ Aug. 30, 2010, see https://www.justice.gov/archive/usao/fls/ PressReleases/2010/100830-02.html; ICE Press Release, ‘‘Pastor sentenced to 1 year for visa fraud, ordered to forfeit building housing former religious school,’’ June 13, 2011, see https://www.ice.gov/ news/releases/pastor-sentenced-1-year-visa-fraudordered-forfeit-building-housing-former-religious; DOJ Press Release, ‘‘School Official Admits Visa Fraud,’’ Mar. 12, 2012, see https://www.justice.gov/ archive/usao/pae/News/2012/Mar/tkhir_ release.htm; ICE Press Release, ‘‘Owner of Georgia PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 60533 program extensions to students who did not have compelling medical or academic reasons for failing to complete their program by its end date,52 and some DSOs permitted students who failed to maintain status to transfer to another school rather than apply for reinstatement.53 Beyond cases publicly identified by DHS and the Department of Justice (DOJ), DHS is concerned about cases where DSOs were not aware of status violations by students. Apart from concerns about DSOs and school owners involved in fraudulent schemes, DHS also has concerns about the actions of the aliens themselves. Some aliens have used the F classification to reside in the United States for decades by continuously enrolling in or transferring between schools, a practice facilitated by the D/ S framework.54 DHS has identified aliens who have been in the United States in F–1 status since the 1990s and early 2000s, some of whom are in active F–1 status today. To extend their stay, English language school sentenced for immigration fraud,’’ May 7, 2014, see https://www.ice.gov/news/ releases/owner-georgia-english-language-schoolsentenced-immigration-fraud; ICE Press Release, ‘‘3 senior executives of for-profit schools plead guilty to student visa, financial aid fraud,’’ Apr. 30, 2015, see https://www.ice.gov/news/releases/3-seniorexecutives-profit-schools-plead-guilty-student-visafinancial-aid-fraud; ICE Press Release ‘‘Owner of schools that illegally allowed foreign nationals to remain in US as ‘students’ sentenced to 15 months in federal prison,’’ Apr. 19, 2018, see https:// www.ice.gov/news/releases/owner-schools-illegallyallowed-foreign-nationals-remain-us-studentssentenced-15. 52 For example, DHS identified a nonimmigrant who has been an F–1 student at a dance school since 1991 and who has been issued 16 program extensions since 2003, when the use of SEVIS was first mandated. Although the reported normal length of the program is 5 years, the school has issued multiple program extensions by claiming that ‘‘[t]he student needs more time’’ despite 28 years of enrollment. In another concerning extension of an academic program, an F–1 student was enrolled at an accredited language training school from 2007 to 2020, requiring 15 program extensions. Another student who was enrolled at the same school from 2009 to 2020 and has been an F–1 student since 2005, was granted 14 program extensions. The school, which has had its SEVPcertification withdrawn, issued multiple program extensions for each student with the justification of ‘‘[e]xtended studies.’’ F–1 students in doctoral programs have taken over 20 years to complete their programs. F–1 students at community colleges have been enrolled in associate degree programs for periods in excess of 5 years—some for as long as a decade. 53 ICE Press Release, ‘‘3 senior executives of forprofit schools plead guilty to student visa, financial aid fraud,’’ April 30, 2015, see https://www.ice.gov/ news/releases/3-senior-executives-profit-schoolsplead-guilty-student-visa-financial-aid-fraud. 54 Monitoring F–1 students on post-completion OPT can be even more complicated because the students are no longer attending classes. See GAO, Student and Exchange Visitor Program, DHS Needs to Assess Risks and Strengthen Oversight of Foreign Students with Employment Authorization, GAO– 14–356 (Washington, DC, Feb. 27, 2014). E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 60534 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules these aliens enrolled in consecutive educational programs, transferred to new schools, or repeatedly requested DSOs to extend their program end dates. This practice is not limited to any one particular type of school; students at community or junior colleges, universities, and language training schools have maintained F–1 status for lengthy periods. While these instances of extended stay may not always result in technical violations of the law, DHS is concerned that such stays violate the spirit of the law, given that student status is meant to be temporary and for the primary purpose of studying, not as a way to remain in the United States indefinitely. The use of the F classification to remain in the United States for decades raises doubts that the alien’s intention was to stay in the United States temporarily, as required by the INA.55 It also raises concerns as to whether those aliens are bona fide nonimmigrant students who are maintaining valid lawful status by complying with the terms of their admission, which include solely pursuing a full course of study and progressing to completing a course of study. Likewise, it raises concerns as to whether these aliens have the financial resources to cover tuition and living expenses without engaging in unauthorized employment. Further, while some school owners and school executives have faced legal consequences for their violation of the law, nonimmigrants admitted for D/S generally do not accrue unlawful presence for purposes of the 3- and 10year bars described in INA 212(a)(9)(B) and (C), 8 U.S.C. 1182(a)(9)(B) and (C) unless an immigration officer finds they have violated their status in the context of adjudicating an immigration benefit request, or an immigration judge orders them excluded, deported, or removed.56 Because F–1 nonimmigrant students are admitted for D/S, they generally do not file applications or petitions, such as extension of stay, with USCIS, and therefore, immigration officers do not generally have an opportunity to determine whether they are engaging in F–1 nonimmigrant activities in the United States and maintaining their F– 1 nonimmigrant status. The U.S. Government Accountability Office (GAO) has reported on DHS’s concerns about DSOs and nonimmigrant students. In 2019, GAO and ICE published a report identifying fraud 55 See INA section 101(a)(15)(F)(i), 8 U.S.C. 1101(a)(15)(F)(i). 56 See USCIS Interoffice Memorandum, ‘‘Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act’’ (May 6, 2009). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 risks to SEVP related to managing school recertification and program training. The report included vulnerabilities associated with involving school owners and DSOs in overseeing the maintenance of status of F–1 students.57 In the report, GAO identified fraud vulnerabilities on the part of both students and schools. Examples include students claiming to maintain status when they are not, such as failing to attend class or working without appropriate authorization, or school owners not requiring enrolled students to attend classes or creating fraudulent documentation for students who are ineligible for the academic program. GAO recommended that ICE develop a fraud risk profile and use data analytics to identify potential fraud indicators in schools petitioning for certification, develop and implement fraud training for DSOs, and strengthen background checks for DSOs. ICE is making a concerted effort to comply with GAO’s recommendations, and has implemented controls to address the fraud risks identified in the GAO report through stricter scrutiny during the SEVP school certification, recertification and compliance process.58 DHS believes it can mitigate these fraud risks in part through, as this rule proposes, setting the authorized admission and extension periods for F nonimmigrants as the length of the F 57 In a 2019 report, GAO was asked to review potential vulnerabilities to fraud in the Student and Exchange Visitor Program. GAO examined, among other things, the extent to which ICE (1) implemented controls to address fraud risks in the school certification and recertification processes and (2) implemented fraud risk controls related to DSO training. See DHS Can Take Additional Steps to Manage Fraud Risks Related to School Recertification and Program Oversight, GAO–19– 297: Published: Mar 18, 2019 available at https:// www.gao.gov/assets/700/697630.pdf; Overstay Enforcement: Additional Mechanisms for Collecting, Assessing, and Sharing Data Could Strengthen DHS’s Efforts but Would Have Costs, GAO–11–411: Published Apr. 15, 2011. Available at https://www.gao.gov/assets/320/317762.pdf; and Student and Exchange Visitor Program: DHS Needs to Assess Risks and Strengthen Oversight Functions, GAO–12–572: Published June 18, 2012 available at https://www.gao.gov/assets/600/ 591668.pdf. 58 Since publishing its 2019 report, GAO has updated its website to include comments to the Recommendations for Executive Action included therein. The comments indicate that ICE is in the process of addressing GAO’s concerns and has taken steps to implement the report’s recommendations, including making a public announcement regarding changing the timeline for the recertification notification process for schools. See U.S. Government Accountability Office, Student and Exchange Visitor Program: DHS Can Take Additional Steps to Manage Fraud Risks Related to School Recertification and Program Oversight, RECOMMENDATIONS, GAO.gov, https://www.gao.gov/products/GAO-19297?mobile_opt_out=1#summary_recommend (last visited April 7, 2020). PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 nonimmigrant’s specific program, not to exceed a 2- or 4-year period. It would establish a mechanism for immigration officers to assess these nonimmigrants at defined periods (such as when applying for an extension of stay in the United States beyond a 2- or 4-year admission period) and determine whether they are complying with the conditions of their classification. Immigration officers receive background checks, clearances, and training before DHS authorizes them to implement the nation’s immigration laws, which includes as part of adjudicating the application, whether nonimmigrants meet the requirements to extend their stay, whether a student has violated his or her nonimmigrant status without the DSO’s awareness or whether DSOs are engaging in fraud by not requiring students to attend classes or by falsifying documents. Immigration officers are further trained to assess applications for fraud indicators, and conduct reviews and vetting that may assist in the detection of fraud or abuse. This would allow DHS to identify and hold accountable aliens who violate their F–1 status and their educational institutions. Under the current D/S framework, DHS might not detect an individual F–1 status violation for an extended period if the student stays enrolled in a school, does not seek readmission to the United States, and does not apply for additional immigration benefits. If DHS makes periodic assessments to verify that F–1 students are maintaining their student status, DHS could better detect and mitigate against these violations as well as violations by their school.59 The proposed rule creates opportunities for this scrutiny if these nonimmigrants wish to remain beyond their fixed period of admission. This may also have the effect of deterring actors who would otherwise seek to come to the United States and engage in some of the behaviors discussed above, believing they would be able to do so undetected for long periods of time. DHS believes this is a more appropriate way to maintain the integrity of the U.S. immigration system. Additionally, the Department believes that the proposed changes would allow immigration officers to directly verify, among other things, that students applying for an EOS: Have the funds needed to live and study in the United States without 59 For example, SEVP may withdraw a school’s certification or deny a school’s recertification if a DSO issues a false statement, including wrongful certification of a statement by signature, in connection with a student’s school transfer or application for employment or practical training. See 8 CFR 214.4(a)(2)(v). E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 engaging in unauthorized work; are maintaining a residence abroad to which they intend to return; have pursued and are pursuing a full course of study; and are completing their studies within the 4 year generally applicable timeframe relating to their post-secondary education programs in the United States or are able to provide a permissible explanation for taking a longer period of time to complete the program. Finally, the D/S framework, because it reduces opportunities for direct vetting of foreign academic students by immigration officers, creates opportunities for foreign adversaries to exploit the F–1 program and undermine U.S. national security. An open education environment in the United States offers enormous benefits, but it also places research universities and the nation at risk for economic, academic, or military espionage by foreign students. Foreign adversaries are using progressively sophisticated and resourceful methods to exploit the U.S. educational environment, including well-documented cases of espionage through the student program.60 Detecting and deterring emerging threats to U.S. national security posed by adversaries exploiting the F–1 program requires additional oversight. DHS believes that replacing admissions for 60 In Dec. 2019, Weiyn Huang, the owner of Findream and Sinocontech pleaded guilty to conspiracy to commit visa fraud in the U.S. District Court in Chicago. In return for payments, Findream listed aliens as OPT workers, providing them with what appeared to be legal status. The FBI has charged one of those aliens with spying. See https:// media.nbcbayarea.com/2019/09/KellyHuang CriminalComplaint.pdf. This vulnerability presented in the nonimmigrant student category has been highlighted by the FBI. In a 2018 hearing before the Senate Intelligence Committee, the FBI Director testified about the threat from China noting, ‘‘that the use of nontraditional collectors, especially in the academic setting, whether it’s professors, scientists, students, we see in almost every field office that the FBI has around the country. It’s not just in major cities. It’s in small ones as well. It’s across basically every discipline. I think the level of naivete´ on the part of the academic sector about this creates its own issues. They’re exploiting the very open research and development environment that we have, which we all revere, but they’re taking advantage of it. So, one of the things we’re trying to do is view the China threat as not just a whole of government threat, but a whole of society threat on their end. I think it’s going to take a whole of society response by us. So, it’s not just the intelligence community, but it’s raising awareness within our academic sector, within our private sector, as part of the defense.’’ See Senate Select Committee on Intelligence Hearing (Feb. 13, 2018), transcript available at https://www.intelligence.senate.gov/hearings/openhearing-worldwide-threats-0#. See also Foreign Threats to Taxpayer—Funded Research: Oversight Opportunities and Policy Solutions: Hearing before the Senate Finance Committee (2019) (Statement of Louis A. Rodi III). DSOs are not trained immigration officers nor are they in a position to make such determinations. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 D/S for F–1 students with admission for a fixed time period would help mitigate these national security risks by ensuring an immigration official directly and periodically vets applicants for extensions of stay and, in so doing, confirms they are engaged only in activities consistent with their student status. F–1 nonimmigrants applying for EOS will also be required to establish they are admissible, and failure to do so will result in denial of the EOS. Admissibility grounds are complex and are properly assessed by a trained DHS officer. Such an assessment is not currently made when F–1 nonimmigrants apply for an extension of their program with their institution.61 Significantly, under the proposed changes to the period of admission of F nonimmigrants and the applicable EOS process, DHS would collect biometrics and other information (such as evidence of financial resources to cover expenses and evidence of criminal activity) from F nonimmigrant students more frequently, thereby enhancing the Government’s oversight and monitoring of these aliens. iii. Risks to the J Classification DHS believes that the national security risks posed by D/S admissions for individuals admitted under the J classification are similar to those posed by the F classification.62 According to a December 2018 report by a panel of experts commissioned by the National Institutes of Health (NIH) to study foreign influence on federally-funded scientific research, ‘‘Small numbers of scientists have committed serious violations of NIH’s policies and systems by not disclosing foreign support (grants), laboratories, or funded faculty positions in other countries.’’ 63 There 61 In addition, DSOs may not be aware of a student’s failure to maintain status, including engaging in criminal activity, nor do they have the authority or ability to acquire such information. Admitting F–1s for a fixed period of admission would provide trained immigration officers with the opportunity to vet these individuals. 62 In its 2019 Report to Congress, the U.S.-China Economic and Security Review Commission, the Commission described the U.S. Government’s efforts to curb China’s extensive influence and espionage activities in academic and commercial settings. The Commission noted that these efforts took the form of visa restrictions for Chinese nationals, greater scrutiny of federal funding awarded to universities, legal action against those suspected of theft or espionage, and new legislation. See U.S.-China Economic And Security Review Commission, 2019 Annual Report to Congress (Nov. 2019) available at https://www.uscc.gov/annualreport/2019-annual-report. 63 U.S. National Institutes of Health Advisory Committee to the Director (ACD), ACD Working Group for Foreign Influences on Research Integrity, Dec. 2018, discussing measures to address concerns about foreign influences related to graduate PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 60535 are multiple examples of these ongoing national security threats. For example, in September 2019, a stark illustration of state-sponsored efforts to illegally obtain U.S. technology emerged when the FBI charged Chinese government official Liu Zhongsan with conspiracy to fraudulently procure U.S. research scholar visas for Chinese officials whose actual purpose was to recruit U.S. scientists for high technology development programs within China.64 Additionally, in December 2019, a 29year-old graduate student in J–1 status participating in an exchange visitor program at Harvard University was stopped at Boston Logan International Airport. Federal agents determined he was a ‘‘high risk for possibly exporting undeclared biological material’’ after finding 21 vials of brown liquid wrapped in a plastic bag inside a sock in his checked luggage; typed and handwritten notes indicated ‘‘that [the exchange visitor] . . . was knowingly gathering and collecting intellectual property . . . possibly on behalf of the Chinese government.’’ 65 Recently, in June 2020, a Chinese national who entered the United States on a J–1 visa to conduct research at the University of California, San Francisco (UCSF) was arrested at Los Angeles International Airport while attempting to return to China, and charged with visa fraud. According to court documents, he allegedly is an officer with the People’s Republic of China’s (PRC) People’s Liberation Army and provided fraudulent information about his military service in his visa application. He allegedly was instructed by his military lab supervisor to bring back to China information about the lab at UCSF.66 Exchange visitor program categories include college and university students, which share similarities with the F–1 nonimmigrant classification. Students enrolled in such programs are pursuing post-secondary studies alongside F–1 nonimmigrants. J–1 college and students and post-doctoral fellows, as well as foreign employees. 64 U.S. Department of Justice, Chinese Government Employee Charged in Manhattan Federal Court with Participating in Conspiracy to Fraudulently Obtain U.S. Visas, Sept. 16, 2019. 65 See https://www.bostonherald.com/2019/12/ 30/peoples-republic-of-china-may-be-behind-theftof-bio-samples-by-harvard-sponsored-chinesestudent-feds-say/. See also https:// www.thedailybeast.com/china-might-be-behindharvard-student-zaosong-zhengs-theft-of-cancerresearch-feds-claim. 66 U.S. Department of Justice, Officer of China’s People’s Liberation Army Arrested At Los Angeles International Airport, June 11, 2020, https:// www.justice.gov/usao-ndca/pr/officer-china-speople-s-liberation-army-arrested-los-angelesinternational-airport, (last accessed June 20, 2020). E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 60536 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules university students in a degree program may be authorized to participate in the exchange visitor program so long as they meet the requirements for duration of participation, including pursuing a full course of study, echoing the full course of study requirements for F–1 nonimmigrants. Their programs may also be extended by the ROs, subject to regulation and/or approval by DOS, without an application to DHS. These similarities give rise to the same concerns related to F–1s about national security, as described above, and about fraud and abuse by J–1s and their ROs. By requiring the same fixed period of admission for F–1s and J–1s, J–1 college and university students in exchange visitor programs would be unable to circumvent the intent of this proposed rule, which is to protect the integrity of these programs and provide additional protections and mechanisms for oversight. Because J exchange visitors are also tracked in SEVIS, DHS believes it would be more effective for an immigration officer to periodically confirm that an alien has properly maintained status, rather than relying on the checks of an RO that the J–1 is pursuing the activities permitted by the exchange visitor program. As noted above, DHS believes it is more appropriate for immigration officers, with their background checks, clearances, and training from the U.S. government, to adjudicate maintenance of nonimmigrant status and whether an alien is eligible for an additional admission period. Switching from D/S to a fixed period of admission would permit immigration officers the opportunity to determine whether an alien is eligible for an additional period of time. If an officer finds a violation of status while adjudicating the alien’s request, the consequences could be immediate. Applicants for EOS must also establish that they are admissible, and failure to do so will result in denial of the EOS.67 Admissibility grounds are complex and are properly assessed by a trained DHS officer. Such an assessment is not currently made when J exchange visitors apply for an extension of their program with their RO.68 Thus, admitting J exchange visitors for a fixed time period, instead of for D/S, would give DHS more frequent opportunities to directly vet these foreign visitors and ensure they are bona fide exchange visitors. Under the proposed changes to 67 See 8 CFR 214.1(a)(3). may not be aware of a student’s failure to maintain status, including engaging in criminal activity. Admitting J–1s for a fixed period of admission would provide trained DHS officers with the opportunity to vet these individuals. 68 ROs VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 the period of admission of J exchange visitors and the applicable EOS process, DHS would more frequently collect biometrics and other information from J exchange visitors, enhancing the Government’s oversight and monitoring of these aliens. iv. Risks to the I Classification Admitting I nonimmigrants for duration of status affords them different treatment from most other nonimmigrants, who are admitted for a specified period of time. The Department believes admitting aliens temporarily in the United States for a fixed period would strengthen vetting and information collection and help immigration officers ensure that the I nonimmigrants are, and will be, engaged in activities that are permissible under INA 101(a)(15)(I). In addition, this rulemaking proposes to require individuals who wish to remain in I nonimmigrant status beyond the end date for their authorized stay to apply for an EOS with USCIS, at which point immigration officers can review their activities in the United States. It also clarifies what DHS would require these individuals to present as evidence supporting their EOS request.69 IV. Discussion of the Proposed Rule All persons arriving at a port-of-entry to the United States must be inspected by a CBP officer and must apply for admission into the United States with CBP.70 In the case of an alien, a CBP officer determines whether an alien is eligible for admission and, if they are, issues the Form I–94, Arrival/Departure Record with the nonimmigrant category and period of admission.71 For the vast majority of aliens, their Form I–94 includes a specific date through which their status is valid; they must depart the United States on or before that date. An alien who wishes to lawfully remain in the United States in the same status 69 These proposed changes, including additional evidence relating to foreign media organizations and activities the alien intends to engage in while in I status, would also apply to a nonimmigrant in the United States who requests to change his/her nonimmigrant status to that of an I nonimmigrant. 70 8 CFR 235. 71 The Form I–94 is used by the U.S. Government to track arrivals and departures of nonimmigrants. Originally the form was designed in two parts—one for the Government and one for the nonimmigrant. The second part would be stapled into the nonimmigrant’s passport and then removed upon departure. The form is now maintained electronically and can be accessed by nonimmigrants by downloading it from the CBP website. See I–94 website, U.S. Customs and Border Protection, https://i94.cbp.dhs.gov/I94/#/recentsearch (last visited Dec. 9, 2019). PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 past that date generally must apply for an EOS with USCIS. However, as described above, certain nonimmigrant categories, including F academic students, J exchange visitors, and I representatives of foreign information media, and their dependents, may be admitted into the United States for D/S instead of a period of time with a specific departure date. DHS is proposing changes to the admission provisions for these particular nonimmigrant classifications, including replacing admissions for ‘‘duration of status’’ with a fixed admission period. This would enable immigration officers to independently and directly verify the continued eligibility of foreign visitors in F, J, or I nonimmigrant status. It would also require aliens who fall under certain criteria to apply more frequently for additional admission periods. A. General Period of Admission for F and J Nonimmigrants As a foundational matter, DHS proposes to add a new paragraph explaining the period of admission for nonimmigrants described in section 101(a)(15)(F) and (J) who are seeking admission after [effective date of the final rule]. In formulating this proposed rule, DHS considered and addressed various circumstances that might apply when F and J nonimmigrants apply for admission at a POE. i. Application for Admission in F or J Nonimmigrant Status Aliens applying for an admission in either F or J status who, under this proposal, would be eligible to be admitted for the length of time indicated by the program end date noted in their Form I–20 or DS–2019, not to exceed 4 years, unless they are subject to a 2-year admission proposed in 8 CFR 214.2(f)(20) or (j)(6), plus a period of 30 days following their program end date, to prepare for departure or to otherwise seek to obtain lawful authorization to remain in the United States. See proposed 8 CFR 214.1(a)(4)(i)(A) and (ii)(A). ii. Application for Admission in the Same Status Following Departure From the United States a. Aliens With Pending Extension of Stay Applications at Time of Application for Admission Whose Previous Period of Authorized Stay Has Expired Aliens who departed the United States and are applying for admission before their timely filed EOS application has been adjudicated, but after their previously authorized period of stay has E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 expired, could be eligible to be admitted for the length of time required to reach the program end date noted in their most recent Form I–20 or DS–2019, not to exceed 4 years, unless they are subject to the 2-year admission proposed in 8 CFR 214.2(f)(20) or (j)(6), plus a period of 30 days to prepare for departure or to otherwise seek to obtain lawful authorization to remain in the United States, similar to an initial period of admission. See proposed 8 CFR 214.1(a)(4)(i)(A) and (ii)(A). USCIS would consider the alien’s EOS application abandoned because the alien’s new fixed date of admission based on the most recent I–20 or DS– 2019 had already been determined by CBP upon the most recent admission to the United States, and thus the pending EOS application is extraneous. See proposed 8 CFR 214.1(c)(6). b. Aliens With Pending Extension of Stay Applications at Time of Application for Admission Whose Previous Period of Authorized Stay Has Not Expired Aliens who departed the United States and are applying for admission before their timely filed EOS application has been adjudicated, but before their previously authorized period of stay has expired, could be eligible to be admitted either for: i. The length of time as indicated by the program end date noted in their most recent Form I–20 or DS–2019, not to exceed 4 years, unless they are subject to the 2-year admission proposed in 8 CFR 214.2(f)(20) or (j)(6), plus a period of 30 days to prepare for departure or to otherwise seek to obtain lawful authorization to remain in the United States, similar to an initial period of admission. If the alien is admitted for the program length (not to exceed 2 or 4 years, as applicable), USCIS would consider the alien’s EOS application abandoned because the alien’s new fixed date of admission based on the most recent I–20 or DS– 2019 had already been determined by CBP upon the most recent admission to the United States, and thus the pending EOS application is extraneous; or ii. The period of time remaining on their previously authorized period of admission. As proposed, CBP could admit the alien for a period of time not to exceed the unexpired period of stay that was authorized before the alien’s departure, plus a period of 30 days to prepare for departure or to otherwise seek to obtain lawful authorization to remain in the United States. In this scenario, in accordance with proposed 8 CFR 214.1(c)(6), an alien’s EOS application is not considered VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 abandoned and USCIS will grant a new period of stay upon subsequent adjudication of the EOS. See proposed 8 CFR 214.1(a)(4)(i)(B) and (a)(4)(ii)(B). c. Aliens Applying for Admission Without a Pending Application of Extension of Stay Aliens who departed the United States and are applying for admission in F or J status would be eligible to be admitted up to the length of their program listed on the Form I–20 or Form DS–2019, not to exceed a period of 4 years, plus an additional 30 days at the end of the program, as specified in 8 CFR 214.2(f)(5) and (j)(1)(ii)(A), respectively, if the alien seeks admission with a Form I–20 or DS–2019 for a program end date beyond their previously authorized period of admission, or for a period up to the unexpired period of stay authorized prior to departure. See proposed 8 CFR 214.1(a)(4)(i)(A) and (a)(4)(ii)(A). d. Aliens Applying for Admission After EOS is Granted For aliens who departed the United States after timely filing an EOS application and are applying for admission in F or J status after their EOS application is granted, DHS proposes that CBP could admit them for a period of time not to exceed the time authorized by their approved EOS, plus a period of 30 days to prepare for departure or to otherwise seek to obtain lawful authorization to remain in the United States. See proposed 8 CFR 214.1(a)(4)(i)(C) and (a)(4)(ii)(C). e. Aliens Applying for Admission To Engage in Post-Completion or STEM OPT F nonimmigrants who departed the U.S. and are applying for admission to engage in post-completion or STEM OPT. See proposed 8 CFR 214.1(a)(4)(i)(D). These aliens may, generally, be admitted either up to the end date of the approved employment authorization or up to the DSO’s recommended employment end date for post-completion or STEM OPT specified on their Form I–20, whichever is later, plus a 30-day period to prepare for departure or to otherwise seek to obtain lawful authorization to remain in the United States. In instances where the EAD has not been approved and the alien is admitted based on the DSO’s recommended employment end date on the Form I–20, USCIS’s subsequent approval of the alien’s EAD may result in less time for the EAD than the time for which the alien was admitted. Therefore, in the limited circumstance where the alien ceases employment PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 60537 because his or her EAD expires before the alien’s fixed date of admission as noted on their I–94, the alien generally will be considered to be in the United States in a period of authorized stay from the date of the expiration noted on their EAD until the fixed date of admission as noted on their I–94. When applying for admission at a POE while their application for employment authorization is pending, they should have a notice issued by USCIS indicating receipt of the employment authorization application necessary for post-completion or STEM OPT (currently Form I–797). Finally, under this proposal, aliens applying for admission pursuant to the provisions relating to automatic extension of visa validity could be admitted for the unexpired period of stay authorized prior to their departure. See proposed 8 CFR 214.1(b)(1). All of these cases assume, consistent with this proposed rule, that the admission period any F or J nonimmigrant previously admitted for D/S would be transitioned to a fixed date of admission. To provide adequate notice to aliens previously admitted for D/S regarding the date when their admission period ends pursuant to the proposed transition, DHS proposes that an alien’s period of admission would expire on the program end date on the alien’s Form I–20 or DS–2019 that is valid on the final rule’s effective date, not to exceed a period of 4 years from the final rule’s effective date, plus an additional period of 60 days for F nonimmigrants and 30 days for J nonimmigrants. See proposed 8 CFR 214.2(f)(5) and (j)(1). DHS believes that this proposal would provide adequate notice because all students and exchange visitors in F or J nonimmigrant status who want to extend their program currently need to apply for permission with their DSO or RO. At that time, the DSO or RO could explain that they are approving a program extension, but the nonimmigrant must apply for an EOS directly with DHS and such EOS must be granted to remain lawfully in the United States. Under current policy, F and J nonimmigrants do not accrue unlawful presence until the day after USCIS formally finds a nonimmigrant status violation while adjudicating a request for another immigration benefit or on the day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed), whichever comes first.72 In 72 See ‘‘Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections E:\FR\FM\25SEP2.SGM Continued 25SEP2 60538 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 reliance on this policy, some F and J nonimmigrants admitted for D/S may not have taken the appropriate steps to maintain status, otherwise change status, or depart the United States. This proposed rule is concerned with providing adequate notice to allow F and J nonimmigrants who are maintaining status to transition to a new date-certain admission. Although some F and J nonimmigrants may have program end dates longer than 4 years, DHS believes that using the program end date on the Form I–20 or DS–2019, up to 4 years from the effective date of the final rule, as the fixed date of admission best aligns with the normal progress these nonimmigrants should be making. This alignment is based on the general structure of post-secondary education in the United States. According to the Department of Education (ED), students can normally earn a bachelor’s degree in 4 years.73 The total number of F–1 students pursuing a bachelor’s degree in 2018 was 522,155, constituting almost 40 percent of the 2018 nonimmigrant student population. The total number of F–1 students pursuing a master’s degree, generally 2-year programs, in 2018 was 498,625, representing almost 38 percent of the nonimmigrant student population. Taken together, this population represents almost 80 percent of the nonimmigrant students in the United States. Therefore, DHS believes that a 4-year period of admission would not pose an undue burden on them, because many F and J nonimmigrants would complete their studies within a 4-year period, and not have to request additional time from DHS.74 The smaller proportion of students not pursuing a bachelor’s or master’s degree are enrolled in different programs, which may last more or less than 4 years.75 As a significantly smaller 212(a)(9)(b)(i) and 212(a)(9)(c)(i)(I) of the Act’’, May 6, 2009, available at https://www.uscis.gov/sites/ default/files/USCIS/Laws/Memoranda/Static_Files_ Memoranda/2009/revision_redesign_AFM.PDF (last accessed June 20, 2020). The policy reflected by this memorandum currently applies to F, J, and I nonimmigrants in relation to duration of status but will change accordingly when duration of status no longer applies to them.) ICE does not make findings of status violations that result in the accrual of unlawful presence. 73 See the Mobile Digest of Education Statistics, 2017, ‘‘The Structure of American Education,’’ available at https://nces.ed.gov/programs/digest/ mobile/The_Structure_of_American_ Education.aspx (last visited Feb. 4, 2020). 74 See the Student and Exchange Visitor Program (SEVP), ‘‘2018 SEVIS by the Numbers Report’’ available at https://www.ice.gov/doclib/sevis/pdf/ sevisByTheNumbers2018.pdf (last visited Feb. 4, 2020). 75 Other programs include Associate’s degrees, language training programs, and Ph.D.s., among others. Id. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 percentage of students are engaged in programs which may last longer than 4 years, DHS considered that the proposed framework would accommodate many students, creating a less burdensome process. The proposed 4-year period of admission would not apply to all F and J nonimmigrants. DHS believes a shorter admission period, up to 2 years, would be appropriate for a subset of the F and J population due to heightened concerns related to fraud, abuse, and national security, as discussed below. See proposed 8 CFR 214.2(f)(20) and (j)(6). For this subset of the F and J population, DHS believes that a 2-year maximum period of admission would be appropriate. This would give the Department an opportunity to verify that they are complying with the terms and conditions of their status more frequently and thereby better address any national security concerns. Using this risk-based approach, which focuses on certain factors predetermined by DHS and presented by some aliens, DHS anticipates that most F and J nonimmigrants would not need to file an EOS application at some point during their stay, and DHS consequently could allocate its resources more efficiently. Before arriving at the 2- and 4-year admission periods, DHS considered various options. DHS considered a standard 1-year admission for all F and J nonimmigrants. This option would treat all nonimmigrants with F and J status equally and would likely allow for easier implementation by CBP at the POEs. Nevertheless, it could result in significant costs to nonimmigrants and the Department. There are more than 1 million F students enrolled in programs of study that last longer than 1 year.76 With a 1-year admission period, students and exchange visitors participating in programs of greater duration would need to apply for additional time. This would be a significant cost to students and exchange visitors, and DHS is particularly mindful of those who comply with the terms and conditions of their admission and participate in programs, such as undergraduate programs, that typically require several years to complete. Another alternative DHS considered was to admit all F and J nonimmigrants to their program end date, not to exceed 3 years. This option would give the Department more frequent direct check76 See the Student and Exchange Visitor Program (SEVP), ‘‘2018 SEVIS by the Numbers Report’’ available at https://www.ice.gov/doclib/sevis/pdf/ sevisByTheNumbers2018.pdf (last visited Feb. 4, 2020). PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 in points with nonimmigrants than a 4year maximum period of admission would. However, DHS was concerned it would unduly burden many F and J nonimmigrants. As discussed above, 4 years best accounts for the normal progress for most programs. Even considering those F or J nonimmigrants who are admitted into the U.S. after having already completed a portion of their program outside of the U.S., instituting a 3-year maximum period of stay would have required each nonimmigrant pursuing a 4 year program to extend, while 4 years allows additional time to complete a 4-year degree. This alternative also would place greater administrative burdens on USCIS and CBP compared to the proposed 4-year maximum period of admission. USCIS would have to adjudicate EOS applications more frequently, and CBP’s workload would increase as individuals would travel to request admission at the POE, with a 3year maximum period of stay than a 4year one. Therefore, DHS believes an admission for the program end date, not to exceed 4 years (except for limited exceptions that would limit admissions to 2 years) is the best option. DHS welcomes comments on this proposal. B. Automatic Extension of Visa Validity at Port of Entry DHS proposes to change the admission language in the provision relating to extension of visa validity from ‘‘shall’’ to ‘‘may’’ clarifying that CBP always maintains the discretion to determine whether to admit an alien and for the period of admission. This change removes any ambiguity about whether CBP has an absolute duty to admit an alien to clarify that CBP has the discretion to admit an alien for a certain period of time. See proposed 8 CFR 214.1(b)(1). DHS proposes technical revisions to the visa revalidation provisions that allow certain F, J, and M nonimmigrants to apply for readmission if eligible for admission as an F, J, or M nonimmigrant and if they are applying for readmission after an absence from the United States not exceeding thirty days solely in contiguous territory or adjacent islands. See 8 CFR 214.1(b). Such technical revisions include updating language to clarify that ‘‘visa revalidation’’ refers to automatic extension of visa validity at the port of entry. These provisions apply when, for example, a nonimmigrant finds himself or herself applying for reentry after going to Mexico on spring break without realizing that his or her visa had expired. Instead of having to get a new visa, CBP can readmit the nonimmigrant E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules whose visa validity is automatically extended by operation of Department of State regulations. See 22 CFR 41.112(d). DHS does not believe it is necessary to make a nonimmigrant get a new visa under these circumstances. DHS proposes minor technical updates to account for inaccurate or no longer applicable terms and cites: First, DHS proposes to strike the reference to INA 101(a)(15)(Q)(ii) and reserve it, as that program no longer exists and is no longer in the INA.77 See proposed 8 CFR 214.1(b)(1)–(3). Second, DHS proposes to update the cross reference to 22 CFR, from 22 CFR 41.125(f) to 22 CFR 41.112(d), which is the current provision describing automatic extension of visa validity at ports of entry. Third, DHS proposes to strike the reference to ‘‘duration of status’’ in 8 CFR 214.1(b)(1). khammond on DSKJM1Z7X2PROD with PROPOSALS2 C. Extension of Stay (EOS) This proposed rule would not create a new form for an EOS application; however, USCIS is in the process of transitioning from paper-based to electronic form processing and some form names and numbers may change. While DHS plans to update existing forms allowing F, J, and I nonimmigrants to apply for an EOS with USCIS, DHS believes it would be more efficient to replace references to specific form names and numbers throughout the current regulations with generally applicable language, specifically, ‘‘extension request in the manner and on the form prescribed by USCIS, together with the required fees and all initial evidence specified in the applicable provisions of 8 CFR 214.2, and in the form instructions, including any biometrics required by 8 CFR 103.16.’’ Using general language in the regulatory text instead of referring to specific form names and numbers helps both the Department and stakeholders. It allows for technical changes without requiring an entirely new rulemaking to update form names. Stakeholders would receive notice and specific guidance on USCIS’ website and in the appropriate form instructions, as they already do for various other benefits. Therefore, DHS proposes to use this language in 8 CFR 214.1(c)(2) and to strike the current phrase exempting F and J nonimmigrants from the requirement to file an EOS, as they would be required to file an EOS if they wish to remain in the United States beyond their specified 77 See Irish Peace Process Cultural and Training Program Act of 1998, Public Law 105–319, 112 Stat. 3013 (Oct. 30, 1998), as amended by Public Law 108–449, 114 Stat. 1526 (Dec. 10, 2004). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 date of admission. See proposed 8 CFR 214.1(c)(2). Like the technical updates to strike the specific form name from 8 CFR 214.1(c)(2), DHS is proposing to strike the references to forms ‘‘I–129’’ and ‘‘I– 539’’ in 8 CFR 214.1(c)(5), replacing those specific form numbers with the aforementioned general language. See proposed 8 CFR 214.1(c)(5). The substance of that provision, including the language that does not allow an alien to appeal an EOS denial would remain the same. Additionally, DHS proposes to strike ‘‘other than as provided in 214.2(f)(7)’’ from 8 CFR 214.1(c)(3)(v) to make it clear students must apply for an EOS. This requirement would not apply to other nonimmigrants admitted for D/S, such as A–1 or A–2 representatives of foreign governments and their immediate family members; they would remain ineligible to file an EOS. As part of the EOS application, USCIS requires biometric collection and will require such collection from F, J, and I nonimmigrants under the proposed rule. USCIS has the general authority to require and collect biometrics (such as fingerprints, photograph, and or a digital signature) from applicants, petitioners, sponsors, beneficiaries, or other individuals residing in the United States for any immigration and naturalization benefit. See 8 CFR 103.16, and 103.2(b)(9). Biometric collection helps USCIS confirm an individual’s identity and conduct background and security checks. Further, USCIS may also require any applicant, petitioner, sponsor, beneficiary or individual filing a benefit request, or any group or class of such persons submitting requests to appear for an interview. See 8 CFR 103.2(b)(9). USCIS may require such an interview as part of USCIS’ screening and adjudication process that helps confirm an individual’s identity, elicit information to assess the eligibility for an immigration benefit, and screen for any national security or fraud concerns. Finally, DHS considered how to address the admission of F, J, and I nonimmigrants who timely filed an EOS and any corresponding applications for employment authorization but left the United States before receiving a decision from USCIS. DHS anticipates this scenario would apply mostly to F– 1 students applying for post-completion OPT and STEM OPT extensions. While USCIS generally does not consider an application for EOS abandoned when the nonimmigrant PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 60539 leaves the United States,78 DHS recognizes the potential for conflict if a nonimmigrant receives authorization from both CBP and USCIS for what amounts to the same request (a specific period of time to pursue authorized activities). Where an alien in F, J, or I status timely files an application for EOS, leaves the United States before USCIS approves that EOS application, and applies for admission to continue his or her activities for the balance of the previously authorized admission period, USCIS would not consider the EOS application abandoned. See proposed 8 CFR 214.1(c)(6)(i). In such circumstances, the pending EOS would remain relevant and ultimately determine the alien’s fixed date of admission. However, where the alien leaves the United States and applies for admission while his or her EOS application is pending and is admitted with a Form I– 20 or DS–2019 for a program end date beyond their previously authorized period of admission, the pending EOS is deemed abandoned, and the admit until date provided by CBP on the alien’s Form I–94 governs. See proposed 8 CFR 214.1(c)(6)(ii). This is because, in these cases, CBP’s grant of a new period of authorized stay would supersede the pending EOS application seeking a period of authorized stay, rendering it superfluous. The Department considered a policy whereby an F, J, or I nonimmigrant would automatically abandon an EOS application upon departing the United States. However, the Department believes such a strict requirement would not be practical, because people cannot always predict when they will have to travel. Regarding applications for employment authorization for F–1s and J–2s, CBP does not adjudicate applications for employment authorization. USCIS would continue processing any such applications, notwithstanding a departure, and, if the application is approved, USCIS will not issue an EAD with a validity date that exceeds the fixed date of admission provided to the alien at the POE. For example, an F–1 student wishing to engage in post-completion or a STEM OPT extension would need to file both an EOS application and an application for employment authorization. Where the alien had departed the United States before his or her application are 78 See Memo, Cook, Acting Asst. Comm. Programs, HQ 70/6.2.9 (June 18, 2001), reprinted in 70 No. 46 Interpreter Releases 1604, 1626 (Dec. 6, 1993). E:\FR\FM\25SEP2.SGM 25SEP2 60540 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules adjudicated, USCIS would not consider the employment authorization application abandoned. In all events, when an F–1 or a J–2 nonimmigrant travels while the employment authorization or EOS application is pending, he or she is still expected to respond to any Request for Evidence (RFE) and to timely submit the requested documents. Because USCIS only sends RFEs to U.S. addresses, aliens traveling outside the United States while applications are pending are advised to make necessary arrangements to determine whether they have received an RFE relating to their application and to timely respond to any RFE.79 Failure to do so could result in USCIS denying an employment authorization or EOS application for abandonment. D. Transition Period khammond on DSKJM1Z7X2PROD with PROPOSALS2 i. F and J Nonimmigrants DHS proposes to generally allow all F and J nonimmigrants present in the United States on [the Final Rule’s effective date], who are validly maintaining that status and who were admitted for D/S, to remain in the United States in F or J status, without filing an EOS request, up to the program end date reflected on their Form I–20 or DS–2019 that is valid on the Final Rule’s effective date, not to exceed 4 years from the effective date of the Final Rule, plus an additional 60 days for F nonimmigrants and 30 days for J nonimmigrants. An alien who departs the United States and seeks admission after the Final Rule’s effective date becomes subject to the fixed date framework imposed by this rule. See proposed 8 CFR 214.1(m)(1). F and J nonimmigrants who depart the United States after the rule’s effective date and before the end date reflected on their Form I–20 or DS–2019 would be readmitted with a new fixed admission period, like any other newly admitted F or J nonimmigrant, as 79 See SEVP’s Study in the States web page, ‘‘Traveling as an International Student’’ available at https://studyinthestates.dhs.gov/traveling-as-aninternational-student (last visited Jan. 9, 2020). See also ICE’s Re-entry for F–1 Non-immigrants Travelling Outside the United States for Five Months or Fewer web page, which notes, ‘‘Can I reenter if my request for OPT is pending? Yes, but traveling during this time should be undertaken with caution. USCIS may send you a request for evidence while you are away, however, so you would want to make sure you have provided a correct U.S. address both to your DSO and on the application and would be able to send in requested documents. Also, if USCIS approves your OPT application, you will be expected to have your EAD in hand to re-enter the United States. Like a request for further information, USCIS can only send the EAD to your U.S. address,’’ available at https:// www.ice.gov/sevis/travel (last visited Jan. 9, 2020). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 provided for in proposed 8 CFR 214.1(a)(4). Aliens whose admission period is converted from D/S to a fixed period who would like to seek additional time to complete their studies, including those requesting postcompletion OPT or STEM OPT extensions or starting a new course of study or exchange visitor program, would need to file an EOS application with USCIS for an admission period up to the new program end date listed on the Form I–20 or DS–2019, or successor form, reflecting such an extension or transfer, up to a maximum of 4-years, or 2 years, as appropriate. See proposed 8 CFR 214.1(m)(1) and 8 CFR 214.2(f)(20). Regarding pending applications for employment authorization during the transition period, aliens in F status who are subject to the transition and who are seeking post-completion OPT and STEM–OPT employment authorization would be authorized to remain in the United States while the application is pending with USCIS if: (1) They are in the United States on the effective date of the final rule with admission for D/ S; (2) they properly filed an application for employment authorization; and (3) their application is pending on the final rule’s effective date. Unless otherwise advised by USCIS, they would not have to file for an EOS or re-file an application for employment authorization. See proposed 8 CFR 214.1(m)(2). If the application for employment authorization is approved, the F–1 will be authorized to remain in the United States in F status until the expiration date of the employment authorization document, plus 60 days as provided in their previous admission. If the employment application is denied, the F–1 would continue to be authorized to remain in the United States until the program end date listed on their Form I–20, plus 60 days as provided in their previous admission, as long as he or she continues to pursue a full course of study and otherwise meets the requirements for F–1 status. Aliens in F–1 status with pending employment authorization applications, other than post-completion OPT and STEM OPT, also do not need to file for an extension or refile an employment authorization application. As long as these F–1s continue to pursue a full course of study and otherwise meet the requirements for F–1 status, they continue to be authorized to remain in the United States until the program end date listed on the Form I–20, plus 60 days, regardless of whether the employment authorization is approved or denied. DHS believes that this transition proposal would not be unreasonably PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 burdensome on F and J nonimmigrants. Many would be able to complete their programs per the terms of their initial admission (D/S) using the original program end date as an expiration of their authorized period of stay. DHS would grant such periods, which include an additional 60 days for Fs and 30 days for Js as provided in their previous admission, automatically without an application or fee. With this option, DHS believes that the majority of F and J nonimmigrants will be shifted to a fixed period of admission of 4 years or less, except for some F–1 students and J–1 exchange visitors. For example, J–1 research scholars and alien physicians who have program end dates for up to 5 or 7 years respectively, would need to apply for an EOS before the 4-year maximum period of stay expires, i.e., the date that falls four years after the rule becomes effective. Another benefit of this option is that it would enable DHS to transition F and J nonimmigrants to an admission for a fixed time period without unduly burdening them, USCIS or CBP. This option would ensure that no F and J nonimmigrants remain in the United States indefinitely by requiring all F and J nonimmigrants admitted for D/S who wish to extend their stay beyond their program end date or the four year maximum, whichever is applicable, to either file an EOS request or depart the United States and apply for admission at a POE by their program end date or the four year maximum period of stay from the final rule’s effective date, plus an additional 60 days for Fs, and 30 days for Js. In proposing these transition procedures, DHS took into consideration the effect of transitioning to a fixed period of admission will have on F and J nonimmigrants originally admitted for D/S who chose to temporarily come to the United States to pursue a program of study or an exchange visitor program. DHS believes the proposed changes would not significantly affect the reliance interests of these nonimmigrants admitted for D/ S. DHS is not proposing to change the fundamental requirements to qualify for these nonimmigrant statuses, rather the proposal is only to change the length of time that an individual may lawfully remain in the United States in F or J status without filing an extension of stay. Admitting these categories of nonimmigrants for a fixed period of admission simply confirms that the admission is temporary and clearly communicates when that temporary admission period ends. Further, as is the case for the fixed period of admission policy more generally, a fixed E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules date of admission simply places these nonimmigrants in the same position as most other nonimmigrants who are temporarily in the United States. They would still be able to continue to pursue their full course of study or exchange visitor program; however, if they need additional time in F or J status, the burden would now be upon them to request authorization directly from DHS and establish eligibility to extend their period of stay in such status, whereas previously they obtained an extension of lawful status in conjunction with a program extension through a DSO or RO. At the same time, this proposed process would provide immigration officials an opportunity to directly review and determine whether F and J nonimmigrants who wish to remain in the United States beyond their fixed period of admission are complying with U.S. immigration law and are indeed eligible to retain their nonimmigrant status. If there are F or J nonimmigrants relying on a D/S admission in an attempt to permanently remain in the United States, or otherwise circumvent their authorized status, this proposed process would allow DHS to detect and deny an extension of stay request. DHS considered several alternatives before determining the above proposal was the best option. First, DHS considered whether to impose a consistent length for the fixed admission for all F and J nonimmigrants transitioning from a D/S admission, such as 1 or 3 years from the final rule’s effective date. While this proposal would provide a standard end date, DHS was concerned about the expense and workload implications of this option on all stakeholders and DHS. As noted, DHS expects most F and J nonimmigrants to complete their program of study or exchange visitor program within a 4-year period. A date that does not align with this expectation could place a significant burden on the affected F and J nonimmigrants and on their academic institutions or exchange visitor programs’ sponsors and employers, as applicable. USCIS would be especially affected if a significant percentage of these nonimmigrants chose to remain in the United States and file for an EOS in order to complete the balance of their program, study, or work activity. While USCIS could try to anticipate the volume, the sheer number of simultaneous nonimmigrants filing for EOS could significantly lengthen processing times. Because the proposed option is less burdensome on F and J nonimmigrants and on DHS, DHS does not believe that ending D/S for all F and J nonimmigrants at timeframes that do VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 not align with the expected length of stay presents the best way to transition from D/S to admission for a fixed time period. The proposed transition period is consistent with the generally applicable policy and allows for the normal progress for most programs that nonimmigrants should be making. Further, it ensures that these nonimmigrants are complying with the terms and conditions of their status by requiring them to apply to extend their status by the end date on the I–20 or DS–2019, not to exceed four years. A second option that DHS considered was to allow F and J nonimmigrants to keep their D/S period of admission until they depart the United States. The Department rejected this alternative, however, because one of the main reasons for proposing this rule is to address current abuse tied to the D/S period of authorized admission. Adopting this alternative would allow aliens currently violating their nonimmigrant status to largely avoid the consequences of non-compliance with U.S. immigration laws by simply remaining in the United States, as otherwise described in this rule. Third, DHS evaluated an option to allow F and J nonimmigrants to retain their D/S admission up to their program end date, with the transfer to a fixed admission date implemented through any of the following actions of the nonimmigrant: (i) Departure from the United States; (ii) transfer to a different institution or sponsor; (iii) failure to maintain a full course of study; (iv) approval for reinstatement; 80 (v) having a DSO or RO extend the program end date; (vi) approval for a post-completion OPT or a STEM OPT extension; or (viii) engaging in any action that requires the issuance of a new Form I–20 or DS– 2019. However, DHS felt that this alternative may fail to provide adequate notice to all affected nonimmigrants given the several scenarios under which the transfer to a fixed period of admission could occur, and could lead to some fraud by DSOs intentionally providing an unnecessarily long program end date on the Form I–20 prior to the final rule’s effective date. Although this option is relatively similar to the proposed transition process, to make the transition easier for Fs, Js, ROs, and DSOs, triggering events were limited to those that result in a change to the program end date, as well as re-entry to the United States. In addition, while this option would allow 80 See 8 CFR 214.2(f)(16), allowing an F–1 student, under certain circumstances, to apply for reinstatement with USCIS after receiving recommendation from the DSO, following a failure to maintain status. PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 60541 DHS to effectuate the transition of the F and J population without requiring the expense and workload associated with large numbers of simultaneous filings, it would not capture those who have program end dates beyond 4 years from the effective date of the proposed rule. Fourth, DHS weighed whether requiring various categories of F or J nonimmigrants to apply for an EOS within 60 days after the final rule’s effective date would better address national security and fraud issues rather than transitioning all nonimmigrants from D/S to an admission for a fixed time period by using the program end date up to a maximum period of four years. To identify the categories that would be required to file an EOS soon after the final rule’s effective date, DHS considered adopting the limiting factors listed at proposed 8 CFR 214.2(f)(20) and (j)(6) (including certain countries and U.S. national interests, unaccredited institutions, E-Verify participation, and language training programs). While such an approach could prioritize certain aliens for prompt, direct vetting and oversight, applying it to hundreds of thousands of nonimmigrants who had been admitted into the United States under D/S could have a significant impact. DHS believes that this approach could result in lengthy processing timeframes as the affected population would be required to file an EOS at the same time. Given USCIS’ processing times, DHS does not believe there would be significant efficiency to excepting certain F or J categories from applying for EOS later than other F or J categories. In addition, this short timeframe to file EOS may be burdensome on F, Js, and the institutions and sponsors as they adapt to a new process, as compared with the proposed transition period within the 4year period. In sum, DHS’s proposal is to transition all F and J nonimmigrants to a fixed admission date by using the program end date noted on their Form I–20 or DS–2019 (with the exception of F students engaging in post-completion or a STEM OPT extension who would use their EAD’s expiration date), not to exceed 4 years, plus an additional 60 days for Fs and 30 days for Js as provided in their previous admission. DHS believes this is a natural way to transition the majority of these nonimmigrants to a fixed admission date without creating any loopholes, such as those that could be created by allowing Fs and Js to retain their duration of status, potentially permitting those who are abusing their status to continue to do so without the oversight and vetting conducted through E:\FR\FM\25SEP2.SGM 25SEP2 60542 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules EOS. It would also provide all affected nonimmigrants adequate notice of the events that would trigger the transition to a fixed admission date to a fixed admission date and their responsibilities resulting from such change. khammond on DSKJM1Z7X2PROD with PROPOSALS2 ii. I Nonimmigrants Turning to I nonimmigrants, DHS proposes an automatic extension of the length of time it takes the alien to complete his or her activity, for a period of up to 240 days. See proposed 8 CFR 214.1(m)(3). DHS based this proposed timeframe on the period of stay authorized in 8 CFR 274a.12(b)(20), which generally provides an automatic extension of employment authorization of 240 days to continue employment with the same employer, including for I nonimmigrants who have timely filed a Form I–539, Application to Extend/ Change Nonimmigrant Status, see 8 CFR 214.2(i), which currently is required when an I nonimmigrant changes information mediums.81 DHS believes that adopting an already established timeframe, to which I nonimmigrants are already accustomed, is reasonable. I nonimmigrants who seek to remain in the United States longer than the automatic extension period provided would be required to file an extension of stay request with USCIS.82 In addition to I nonimmigrants being familiar with the timeframe under 8 CFR 274a.12(b)(20), DHS anticipates that this provision would reduce any gaps in employment due to USCIS’ processing timeframes between the I nonimmigrant’s application for extension and USCIS approval of the application. It would also facilitate an I nonimmigrant’s ability to complete his or her assignment while temporarily in the United States on behalf of a foreign media organization, in that it would give ample time to any I nonimmigrant to either complete that assignment or ask for an extension, as needed. Finally, the transition procedures would not apply to F, J, or I aliens who are outside the United States when the final rule takes effect, or to any aliens present in the United States in violation of their status. See proposed 8 CFR 214.1(m)(1)–(m)(3). 81 See Instructions for Application to Extend/ Change Nonimmigrant Status, available at https:// www.uscis.gov/i-539 (last visited April 13, 2020). 82 Typically, fewer than 50,000 aliens enter the U.S. in I classification annually. See 2017 Yearbook of Immigration Statistics, Published by the DHS Office of Immigration Statistics, July 2019, page 63. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 E. Requirements for Admission, Extension, and Maintenance of Status of F Nonimmigrants DHS is proposing various changes under the regulations that provide the framework for admission, extension, and maintenance of status for F nonimmigrants. These changes would eliminate D/S, require students to file an EOS if requesting to remain in the United States beyond the period of their admission, and clarify terms to ensure that the activities an F nonimmigrant has engaged in are consistent with those of a bona fide student. i. Admission for a Fixed Time Period As a preliminary matter, DHS is proposing to strike the current regulation that allows F nonimmigrants to be admitted for D/S. DHS would replace it with a provision allowing F nonimmigrants to be granted status for the length of their program, not to exceed 4 years and subject to eligibility limitations, as well as national security and fraud concerns. Second, DHS proposes to retain in the regulations the statutory limitation that restricts public high school students to an aggregate of 12 months of study at any public high school(s). See 8 CFR 214.2(f)(5)(i). However, this proposed rule moves this provision to a new section and further clarifies that the 12month aggregate period includes any school breaks and annual vacations. See proposed 8 CFR 214.2(f)(5)(i)(D). Current requirements, including paying the full cost of education, would also remain in place. Third, F–1 students who are applying to attend an approved private elementary or middle school or private academic high school would continue to be covered by the provisions of paragraph (f)(6)(i)(E). These provisions require the DSO to certify a minimum number of class hours per week prescribed by the school for normal progress toward graduation. See 8 CFR 214.2(f)(6)(i)(E). However, like all other F–1 students, they would be subject to the 4-year or 2-year maximum period of admission and they would need to apply for an extension of stay with DHS if staying beyond this period. See proposed 8 CFR 214.2(f)(7)(vi). Fourth, DHS is proposing to exempt border commuter students from the general length of admission provisions. See proposed 8 CFR 214.2(f)(5)(i)(C). The regulations at 8 CFR 214.2(f)(18) would continue to govern these border commuter students, including that DHS to admit them for a fixed time period. Fifth, F–1 students in a language training program would be restricted to PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 a lifetime aggregate of 24 months of language study, which would include breaks and an annual vacation. See proposed 8 CFR 214.2(f)(5)(i)(B). DHS is proposing this limitation as a way to prevent abuse of the F–1 program. Public Law 111–306, enacted on December 14, 2010, and effective since 2011, requires language training schools enrolling F–1 students to be accredited by an accrediting agency recognized by the Secretary of Education. DHS consistently sees students enrolled in language training schools for very lengthy periods of time, including instances of enrollment for over a decade, either by extending a program at one school or transferring between language schools.83 DHS has also found students enrolling in lengthy periods of language training despite previously enrolling in or completing undergraduate and graduate programs requiring English language proficiency.84 Unlike degree programs that typically have prescribed course completion requirements, there are no nationally-recognized, standard completion requirements for language training programs and students are able to enroll in language training programs for lengthy periods of time. The lengthy enrollment in a language program, including enrollment in language courses for long periods subsequent to completion of a program of study that requires proficiency in English, raises concerns about whether the F–1s meet the statutory definition of a bona fide student with the intent of entering the U.S. for temporary study.85 Therefore, DHS proposes a 24-month aggregate limit for F–1 students to participate in a language training program, as it would provide a reasonable period of time for students to attain proficiency while mitigating the Department’s concerns about the integrity of the program. This timeframe generally comports with the length of language training classes offered by schools that are accredited by ED-recognized agencies.86 DHS seeks 83 For example, at one accredited English language training school, five students have been enrolled in language training since 2010; eight since 2011; three since 2012; two since 2013; two since 2014; and two since 2015. 84 For example, one student has been enrolled in English language training programs at four different schools since 2015 despite being an F–1 student since at least 2002. She was enrolled in an English language training program from 2002–2004 and subsequently enrolled in an associate’s program that required English language proficiency from 2004–2008. Her Form I–20 noted that she had the required English language proficiency for that program. 85 See INA (101)(a)(15)(F). 86 Courses listed by language training schools accredited by the Accrediting Council For Continuing Education & Training reflect that most E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules comments on whether 24 months is sufficient for a language training program. Sixth, DHS proposes a maximum admission period of up to 2 years for certain students. See proposed 8 CFR 214.2(f)(5)(i)(A) and (f)(20). This period is based on factors that DHS identified as involving national security and public safety concerns, with the goal of encouraging compliance with immigration laws. They are: • Aliens who were born in or are citizens of countries on the State Sponsor of Terrorism List. The State Sponsor of Terrorism List are countries, as determined by the Secretary of State, to have repeatedly provided support for acts of international terrorism pursuant to three laws: Section 6(j) of the Export Administration Act, section 40 of the Arms Export Control Act, and section 620A of the Foreign Assistance Act. Designation as a ‘‘State Sponsor of Terrorism’’ under these authorities also implicates other sanctions laws that penalize persons and countries engaging in certain trade with state sponsors. There are currently four countries designated as a state sponsor of terrorism under these authorities: The Democratic People’s Republic of Korea (North Korea), Iran, Sudan, and Syria. Under this proposal, DHS anticipates admitting those who were born in or are citizens of those countries for a maximum period of up to 2 years. The Department believes it is appropriate to apply additional scrutiny on those born in these countries and citizens of these countries who are temporarily studying in the United States to ensure that these aliens do not pose risks to the national security of the United States. For easier reference and to ensure affected stakeholders have advanced notice of the countries on the State Sponsors of Terrorism List prior to choosing a country and institution to study in, DHS proposes to publish a Federal Register notice (FRN) with the DOS list. If DOS makes changes to the list, DHS proposes to publish an FRN with the updated list. Any future FRN will also announce the date that the new maximum 2-year period of admission would apply. • Aliens who are citizens of countries with a student and exchange visitor total overstay rate of greater than 10 percent according to the most recent Intensive English Programs can be completed within 24 months, website available at https:// accet.org/ (last visited Feb. 7, 2020). For example, ELS Language Center’s longest English as a Second Language (ESL) program is 1440 hours. Attending 18 clock hours per week, the minimum for a full course of study, for that period of time would result in 18.4 months. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 DHS Entry/Exit Overstay report.87 The DHS Entry/Exit Overstay report compiles overstay rates for different classifications. It provides overstay rates per country for F, M, and J nonimmigrants together, rather than a separate overstay rate by classification, per country. Given the overlap between the F and J classifications, utilizing the data for both exchange visitors and students to establish overstay rates is useful in that it may deter aliens who may attempt to seek admission in one status rather than the other in order to obtain a lengthier period of admission. A key goal of shifting aliens in F status from D/S to an admission for a fixed time period is to provide pre-defined time periods for immigration officers to evaluate whether a nonimmigrant has maintained his or her status. If an immigration officer finds that an alien violated his or her status prior to or during the course of an EOS adjudication and denies the EOS request, the alien generally would begin accruing unlawful presence the day after issuance of the denial.88 The Department finds it appropriate to apply additional oversight to nonimmigrants from countries with consistently high student and exchange visitor overstay rates, by requiring these aliens to more frequently request extensions of stay. Because there is an increased risk of overstay by nonimmigrants from these countries as reflected by the DHS Entry/ Exit Overstay reports, DHS would be able to identify such violations sooner. Further, DHS believes this more frequent oversight could deter aliens from engaging in activities that would violate their status, as the consequences of doing so would arise more quickly. A primary aim of this proposed rule is to institute policies that would encourage aliens to maintain lawful status and reduce instances in which F, J, and I nonimmigrants unlawfully remain in the United States after their program or practical training ends. Under this proposed rule, aliens who remain in the United States beyond a fixed time period generally would begin accruing unlawful presence. Depending 87 The overstay report for 2019 can be found at https://www.dhs.gov/sites/default/files/ publications/20_0513_fy19-entry-and-exit-overstayreport.pdf. See Table 4, Column 6. 88 See USCIS Policy Memo, Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(b)(i) and 212(a)(9)(c)(i)(I) of the Act, May 6, 2009, available at https://www.uscis.gov/sites/default/files/USCIS/ Laws/Memoranda/Static_Files_Memoranda/2009/ revision_redesign_AFM.PDF (last accessed June 20, 2020). This policy currently applies to F, J, and I nonimmigrants in relation to duration of status but will change accordingly when duration of status no longer applies to them). PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 60543 on the extent of unlawful presence accrual, an alien may become inadmissible upon departing the United States and will be ineligible for benefits for which admissibility is required, such as adjustment of status to that of a lawful permanent resident. See INA 212(a)(9)(B), (C), 8 U.S.C. 1189(a)(9)(B), (C); INA 245(a), 8 U.S.C. 1255(a). Placing restrictions on citizens of countries with high overstay rates incentivizes timely departure. The aggregate effect of the policy may help reduce a country’s overstay rate on the DHS Entry/Exit report below 10 percent, in which case nationals of the country would become eligible for a longer period of admission under the F nonimmigrant classification. Finally, the ‘‘greater than 10%’’ student and exchange visitor overstay rate threshold aligns with the percentage described by the Administration as a ‘high’ overstay rate for the purpose of enabling DHS and DOS to ‘‘immediately begin taking all appropriate actions that are within the scope of their respective authorities to reduce overstay rates for all classes of nonimmigrant visas.’’ 89 The ‘‘greater than 10%’’ overstay rate threshold is more than double the general overstay rate for nonimmigrant student and exchange visitors as noted in the 2018 DHS Entry/Exit Overstay report,90 meaning that countries with such overstay rates are well outside the norm. DHS believes that it is appropriate to require more frequent check-ins on citizens of those countries to ensure that they are in compliance with the terms and conditions of their admission. To ensure affected stakeholders have notice of which countries have an overstay rate exceeding that threshold, DHS proposes to issue FRNs listing countries with overstay rates triggering the 2-year admission period. The first such FRN would also list countries that have been designated as State Sponsors of Terrorism, and provide a link where 89 See Presidential Memorandum on Combating High Nonimmigrant Overstay Rates (April 22, 2019) available at https://www.whitehouse.gov/ presidential-actions/presidential-memorandumcombating-high-nonimmigrant-overstay-rates/(last visited April 13, 2020). The Presidential Memorandum identified countries with a total overstay rate greater than 10 percent in the combined B–1 and B–2 nonimmigrant visa category as appropriate for additional engagement by the DOS, which ‘‘should identify conditions contributing to high overstay rates among nationals of those countries . . .’’ 90 According to the FY 2018 DHS Entry/Exit Overstay Report, for nonimmigrants who entered on a student or exchange visitor visa (F, M, or J visa) there were 1,840,482 students and exchange visitors scheduled to complete their program in the United States, of which 3.73 percent (68,593) stayed beyond the authorized window for departure at the end of their program. E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 60544 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules stakeholders could access information about schools that have been accredited by an ED-recognized accrediting agency.91 DHS proposes to publish this FRN contemporaneously with the final rule. Any changes to the list would be made by a new FRN. • U.S. national interest. Other factors that would be incorporated into a FRN would be a limitation of a student’s period of stay to a maximum of a 2-year period based on factors determined to be in the U.S. national interest, which may include but not be limited to circumstances where they may be national security concerns or risks of fraud and abuse. For example, the Secretary of Homeland Security could determine that it is appropriate to limit the length of admission of students who are enrolled in specific courses of study, such as nuclear science. DHS believes collecting information more often and applying additional vetting helps mitigate national security risks. If the DHS Secretary determines that U.S. national interests warrant limiting admission to a 2-year maximum period in certain circumstances, then it would publish an FRN to give the public advance notice of such circumstance. • Aliens who are not attending institutions accredited by an accrediting agency recognized by the Secretary of Education. The goal of accreditation is to ensure that by post-secondary institution provides an education that meets acceptable levels of quality. Specifically, the accreditation process involves the periodic review of institutions and programs to determine whether they meet established standards. and are achieving their stated educational objectives. Schools meeting the accreditation requirement are subjected to significant oversight by the accrediting body, including recurring assessment of the institutions’ programs to ascertain their effectiveness in helping students attain both academic knowledge and professional skills. The intervals at which schools must submit to accreditation review vary across accrediting agencies, but review typically occurs at least every 10 years, with the accrediting agencies themselves subject to review by ED, to determine whether to grant or renew recognition, at least every 5 years.92 91 The Department of Education (ED) provides this information on its Database of Accredited Postsecondary Institutions and Programs web page at https://ope.ed.gov/dapip/#/home (last visited Feb. 1, 2020). 92 Report from U.S. Department of Education Office of the Inspector General, U.S. Department of Education’s Recognition and Oversight of Accrediting Agencies, ED–OIG/A09R 0003, June 27, 2018. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 Accreditation may be institutional, meaning it applies to the school as a whole and covers any educational programs the school offers, or specialized/programmatic, meaning it covers specific programs only.93 ED classifies each recognized accrediting agency as institutional or programmatic to help schools identify which agencies might be appropriate for their needs.94 DHS believes the independent, thirdparty checks offered through accreditation minimize the risk of fraud and abuse by schools and DSOs. The history of problems encountered at unaccredited schools approved for the attendance of F–1 students demonstrates the value of promoting attendance at accredited schools. For example, in 2014, the founder of TriValley University, an unaccredited institution in Pleasanton, California, Susan Xiao-Ping Su, was sentenced to more than 16 years in prison for her role in a massive, highly profitable visa fraud scheme that lasted 2 years.95 To execute the fraud, Su submitted fabricated paperwork to DHS to obtain certification to enroll nonimmigrant students. Once certified, Su issued F–1 visa-related documents to students on false premises, with no criteria for admission or graduation, and no requirement that students maintain the course loads required for F–1 status.96 While it was operating, the school helped approximately 1,500 foreign nationals enter the country for work or other purposes by helping them illegally obtain F–1 visas.97 Also in 2014, the former head of College Prep Academy in Duluth, Georgia, another unaccredited institution, was sentenced to nearly 2 years in prison for overseeing an immigration fraud scheme that brought women into the country through illegally obtained F–1 visas.98 Once in 93 Id. 94 List of ED’s Database of Accredited Postsecondary Institutions and Programs, https:// ope.ed.gov/dapip/#/agency-list (last visited Feb. 4, 2020). 95 See U.S. Department of Justice (DOJ), U.S. Attorney’s Office Northern District of California News Release, ‘‘CEO and President of East Bay University Sentenced to 198 Months for Fraud Scheme,’’ (Nov. 3, 2014) available at https:// www.justice.gov/usao-ndca/pr/ceo-and-presidenteast-bay-university-sentenced-198-months-fraudscheme (last visited Feb. 7, 2020). 96 Id. 97 See The Chronicle of Higher Education, ‘‘LittleKnown Colleges Exploit Visa Loopholes to Make Millions Off Foreign Students’’ (March 20, 2011) available at https://www.chronicle.com/article/ Little-Known-Colleges-Make/126822 (last visited Feb. 7, 2020). 98 See DOJ News Release, ‘‘English Language School Owner Sentenced for Immigration Fraud,’’ (May 7, 2014) available at https://www.justice.gov/ usao-ndga/pr/english-language-school-owner- PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 the United States, the women were put to work in bars operated by associates of the school’s owner, with no expectation that they would ever attend classes at the school.99 More recently, in 2018, the owner of four unaccredited schools in and around Los Angeles was sentenced to over 1 year in prison for his role in conducting a ‘‘sophisticated, extensive, and lucrative’’ immigration document fraud scheme that lasted for at least 5 years.100 The owner and his co-conspirators falsified student records and transcripts for thousands of foreign nationals as part of a ‘‘pay-to-stay’’ scheme. They enabled the nonimmigrants to remain in the United States illegally, despite rarely or ever attending the classes for which they were allegedly enrolled.101 DHS believes that the accreditation limitation will curtail the potential for fraudulent use of F–1 student status. It will provide a direct check-in point with the Department if a nonimmigrant enrolled in an unaccredited school wishes to remain in the U.S. beyond 2 years. While DHS is not imposing an ED-accreditation requirement on postsecondary institutions in order to be certified by SEVP to accept foreign students, the Department is proposing to rely on the accreditation process as a means to promote the integrity of the immigration system. DHS hopes that post-secondary institutions enrolling foreign students thereby would be incentivized to pursue accreditation by an ED-recognized agency, including meeting all requirements, rather than potentially lose future international students and associated revenue to those schools that do. Because ED only has the authority to recognize post-secondary accreditors, aliens attending elementary, middle or high school would not be subject to this limitation and may be eligible for the maximum 4-year period of admission. A link to information about ED-accredited agencies would be included in a FRN that would be published concurrently with the final rule and updated as needed (including if ED changes the web page where it publishes accredited agencies). • E-Verify Participation. USCIS administers E-Verify, a web-based sentenced-immigration-fraud (last visited Feb. 7, 2020). 99 Id. 100 See DOJ News Release, Owner of Schools that Illegally Allowed Foreign Nationals to Remain in U.S. as ‘Students’ Sentenced to 15 Months in Federal Prison, https://www.justice.gov/usao-cdca/ pr/owner-schools-illegally-allowed-foreignnationals-remain-us-students-sentenced-15 (last visited April 13, 2020). 101 Id. E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules system that electronically compares information from an employee’s Employment Eligibility Verification (Form I–9) with records available to DHS. E-Verify accesses millions of government records available to DHS and the Social Security Administration. It is the best means for employers to confirm the identity and employment eligibility of their new hires. E-Verify has over 850,000 enrolled employers and other participants of all sizes, encompassing more than 2.5 million hiring sites. It is one of the Federal Government’s highest-rated services for user satisfaction. Twenty-two states currently have various forms of statutes or other legal requirements making participation in E-Verify a condition of business licensing or state contracting laws. DHS believes that schools that are willing to go above and beyond to ensure compliance with immigration law in one respect (verifying identity and employment eligibility as required under section 274A of the INA and taking the additional step to confirm Form I–9 information using E-Verify) are more likely to comply with immigration law in other respects (SEVP purposes) by successfully monitoring their F students. DHS therefore proposes that E-Verify participation warrants a 4year admission period for students of those schools, subject to other limitations on admission that may apply. Conversely, there is less confidence in schools that are unwilling to do all they can to ensure they have a legal workforce to support students’ academic programs by participating in E-Verify. Accordingly, DHS proposes that it would monitor whether students of such schools maintain status more frequently by limiting their admission period to 2 years. DHS believes that the E-Verify proposal would incentivize more schools to enroll in E-Verify. Should more schools enroll in E-Verify, DHS would be better assured that schools were meeting the certification standards at 8 CFR 214.3(a)(3). This provision is associated with evaluating whether an educational institution is a bona fide school possessing the necessary facilities, personnel, and finances. It helps ensure that F nonimmigrants are choosing educational institutions that have demonstrated a willingness to best ensure compliance with immigration laws in one respect (i.e., hiring), and which DHS believes therefore would be more likely to comply with requirements pertaining to school certification and enrollment of F nonimmigrants. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 E-Verify could also provide DHS another data point to assess and independently verify whether an educational institution has teachers, employees, and/or offices proportionate to the number of students that are enrolled and in attendance. When enrolling in E-Verify, employers indicate the size of the organization which can provide DHS with additional information about whether the school has necessary personnel as required by 8 CFR 213.3(a)(3). A school that uses EVerify when they hire such employees is doing as much as it can to ensure they have a stable workforce to operate as a school. While the school’s certification requirements would not be assessed when a student applies for EOS, the fact that a school participates in E-Verify should give DHS a greater level of assurance that the school is likely to comply with all other federal requirements and operates in accordance with the certification standards for which it is responsible. When determining how to apply the 2-year admission limitation, DHS considered how to address situations when an alien admitted in F status for a 4-year period subsequently would become subject to a 2-year period if seeking admission. For example, a student may have a 4-year period of admission, but in the midst of this period, an FRN may be published indicating that his or her home country now has a student and exchange visitor total overstay rate of greater than 10 percent, as stated in the DHS Entry/Exit Overstay Report. Notwithstanding such intervening events, aliens will remain subject to the period of admission approved upon his or her application for admission, extension of stay, or change of status. Further, changing the terms of admission at irregular intervals for particular classes of F nonimmigrants would introduce significant confusion, make their stay unpredictable, and so potentially discourage some students from pursuing their studies in the United States. Therefore, DHS is proposing to allow such aliens to remain in the United States for the remainder of whatever period of admission is afforded them when they are admitted in, extend their stay in, or change status to F–1 status. However, if such aliens depart the United States, the departure and subsequent application for admission would trigger a new review and these aliens would be treated the same as any other aliens applying for admission. At that point they would become subject to applicable terms and conditions of admission, including the 2-year limitation. Similarly if a student needs PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 60545 to file an EOS application in the midst of his or her 4-year admission period (for example, a student decides to request pre-completion OPT and receives a Form I–20 reflecting the new program end date), and their EOS application is filed on or after the student is subject to a 2-year maximum period of stay, that would trigger the new 2-year maximum period of stay. Similarly, if a student needs to file an EOS or departs and applies for readmission, and the student files or applies after he or she is no longer subject to the 2-year limitation, that would trigger the 4-year maximum period of stay. DHS invites comments on all these proposals, and specifically the limitations on the language training schools, the U.S. national interest factor, E-Verify, whether additional limitations should be added, and whether exemptions to the limitations on admission should be possible. ii. Changes in Educational Levels Under current regulations, F–1 students who continue from one educational level to another are considered to be maintaining status. See 8 CFR 214.2(f)(5)(ii). However, DHS has observed that some students continuously enroll in different programs at the same degree level, such as by pursuing multiple associate, master’s, undergraduate, or certificate programs. Alternatively, some students change to a lower educational level, such as by completing a master’s degree and then changing to an associate’s program. This has enabled some aliens to remain in the United States for lengthy periods of time in F–1 student status, raising concerns about the temporary nature of their stay. In 2019, DHS identified nearly 29,000 F–1 students who, since SEVIS was implemented in 2003, have spent more than 10 years in student status.102 This includes individuals who enrolled in programs at the same educational level as many as 12 times, as well as students who have completed graduate programs followed by enrolling in undergraduate programs, including associate’s degrees. While there are legitimate cases of students wishing to gain knowledge at a lower or the same educational level, the traditional path of study progresses from a lower educational program to a higher one. The regulations contemplate a model consistent with the vast majority of bona fide students following 102 DHS compiled this information while conducting an internal case analysis; however, the Department is withholding this information to prevent the disclosure of PII. E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 60546 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules this upward trajectory. The term ‘‘full course of study’’ as defined in the regulations requires that the program ‘‘lead to the attainment of a specific educational or professional objective.’’ 103 Frequent or repeated changes within an educational level or to a lower level are not consistent with attainment of such an objective. This understanding was reflected in the preamble to a 1986 rulemaking proposing changes to the F regulations, which stated: ‘‘The proposed regulation . . . places limitations on the length of time a student may remain in any one level of study. Thus, the Service has eliminated applications for extension of stay for students who are progressing from one educational level to another but has placed a control over students who, for an inordinate length of time, remain in one level of study.’’ 104 DHS thus proposes to limit the number of times a student can change to another program within an educational level, such as to pursue another bachelor’s or master’s degree. Specifically, any student who has completed a program at one educational level would be allowed to change to another program at the same educational level no more than two additional times while in F–1 status, for a total of three programs for the lifetime of the student. See proposed 8 CFR 214.2(f)(5)(ii)(B). DHS believes this would accommodate the legitimate academic activities of bona fide students that are not following the typical upward progression, such as a desire to pursue a different field of study, or to pursue more specialized studies in their field. In addition, an F–1 student who has completed a program at one educational level would be allowed to change to a lower educational level one time while in F–1 status. See proposed 8 CFR 214.2(f)(5)(ii)(C). These restrictions limiting the number of times a student can complete additional programs in one educational level or begin a new program at a lower educational level are lifetime restrictions; they do not reset, for instance, with a new admission as an F– 1 student. DHS believes that it is reasonable in most cases for a student to progress to a higher educational level rather than continue at the same level or pursue a lower level of education. When, after completion of one program, an F–1 wishes to pursue a new program at a lower educational level more than once 103 8 CFR 214.2(f)(6)(i). Classes, Change of Nonimmigrant Classification, 51 FR 27867 (proposed Aug. 4, 1986). 104 Nonimmigrant VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 or a new degree at the same educational level more than twice (for a total of three programs), concerns are raised regarding whether the F–1 alien is a bona fide student who intends to temporarily and solely pursue a full course of study rather than pursuing different degrees as a de facto way to permanently stay in the United States. Aliens in F–1 status seeking to change to a new program following completion of a program at the same educational level (up to two additional times after completion of the initial program) or seeking to change to a lower educational level (no more than one additional time after completion of the initial program) would need to obtain a new Form I–20 from their DSO reflecting the new program. If the new program completion date exceeds the authorized period of admission, the alien would then apply for EOS on the form designated by USCIS, with the required fee and in accordance with form instructions, including any biometrics required by 8 CFR 103.16. See proposed 8 CFR 214.2(f)(5)(ii)(D). DHS, of course, determines in all instances on a case-by-case basis whether an alien who has completed his or her initial program and seeks to change programs within the same level or to a lower educational level, has the requisite nonimmigrant intent, is a bona fide student, and has adequate financial resources to continue their studies, or is misusing the F–1 program as a pretext to unlawfully extend their stay in the United States. DHS recognizes that this proposal will require updates to SEVIS and other systems. Because the timeframe for those updates is not fixed and there could be technical issues regarding implementation, DHS is proposing to include a provision whereby the Department may delay or suspend implementation, in its discretion, if it determines that the change in educational level limitation is inoperable for any reason. See proposed 8 CFR 214.2(f)(5)(ii)(E). If DHS delays or suspends the provisions in this section governing the change in degree level, DHS would make an announcement of the delay or suspension to the academic community through SEVP’s various communication channels, including ICE.gov/SEVP, Study in the States (https://studyinthestates.dhs.gov) and SEVIS Broadcast Message. DHS would also announce the implementation dates of the change in degree level provision through SEVP’s communication channels (ICE.gov/SEVP, Study in the States, and SEVIS Broadcast Message) at least 30 calendar days in advance. Id. PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 DHS considered a complete ban on changes to a lower or same educational level, supported by the assumption that these F–1 aliens are not reliably continuing to make normal progress towards the completion of their educational objectives. However, the Department believes such an option to be overbroad—there may be exceptions to the general upward progression in educational levels. For example, a student might wish to pursue an MBA following the completion of his or her Ph.D. Additionally, DHS proposes to retain the term ‘‘educational’’ with respect to the change in level as the Department believes it more accurately reflects current academic models. Specifically, ‘‘educational’’ captures programs for non-degree students, whereas using a term such as ‘‘degree’’ may not. For example, currently, an F–1 student would not qualify for additional postcompletion OPT if he or she changes to a certificate program, given that the certificate program is not a ‘‘higher educational level.’’ Similarly, certificate programs for professional advancement are typically not considered to be a ‘‘higher educational level’’ allowing students to qualify for additional postcompletion OPT. DHS believes these proposals will encourage foreign students to pursue a general upward progression in degree levels, which is expected from a qualified bona fide student who is coming to the United States temporarily and solely to pursue a course of study. While this change could dissuade some foreign nationals from choosing to study in the United States, the Department believes that this restriction would not significantly impact the choice of bona fide students who come to the United States temporarily to complete a full course of study. The F–1 program, with its statutory requirement that an alien be a bona fide student who seeks to enter the United States temporarily and solely for the purpose of pursuing a full course of study, should not be used by aliens wishing to remain in the United States permanently or indefinitely. These proposals would better ensure that this statutory intent is fulfilled without hindering the options presented to bona fide students seeking higher educational levels and thus create a balanced solution to this issue. DHS welcomes comments on this proposal. iii. Preparation for Departure DHS believes that the time allotted for F students to prepare for departure should be revised. Under current regulations, F–1 students are provided 60 days following the completion of E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 their studies and any practical training to prepare for departure from the United States. See 8 CFR 214.2(f)(5)(iv). However, this is twice as long as other student and exchange visitor categories—J exchange visitors and M vocational students are only allowed 30 days. See 8 CFR 214.2(j)(1)(ii) and (m)(10)(i). This 60-day period is also six times longer than certain nonimmigrants who are authorized to remain in the United States for years, but are only provided with a 10-day period to depart the United States. For example, DHS provides a 10-day period following the end of the alien’s admission period as stated on his or her Form I–94 for individuals in the E–1, E–2, E–3, H–1B, L–1, and TN classifications in a 2016 rulemaking.105 In the rulemaking discussing this 10-day period for departure, DHS noted that a grace period of up to 10 days after the end of an authorized validity period provides a reasonable amount of time for such nonimmigrants to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.106 It is thus unclear to DHS why F students would need a significantly longer period of time—60 days—to prepare for departure when other nonimmigrants have less time to prepare for departure.107 DHS believes that 30 days for the F nonimmigrant population is the appropriate balance between a 60-day and a 10-day period of departure. DHS believes that the F category, albeit distinct from M or J, shares a core similarity in that many aliens in these categories are seeking admission to the United States to study at United States educational institutions. Thus, DHS thinks that these categories should have a standard period of time to prepare for departure, or take other actions to 105 See 8 CFR 214.1(l)(1) (providing for 10-day grace periods for certain nonimmigrants). 106 See Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82,398, 82,401 (Nov. 18, 2016). 107 Rulemakings in the mid-1980s mention this 60-day period for departure but did not provide any explanation as to why this period of time to depart was given to students. See e.g., Nonimmigrant Classes; F–1 Students, 52 FR 13,223 (Apr. 22, 1987) (referencing the proposed rule, and stating that in the ‘‘proposed regulations, duration of status was defined to mean the period during which a student is pursuing a full course of studies in any educational program, and any period or periods of authorized practical training, plus sixty days,’’ but not indicating the reason for the 60-day period). Nonimmigrant Classes; Change of nonimmigrant Classification, 51 FR 27,867 (Aug. 4, 1986) (proposing that duration of status would consist of an additional ‘‘sixty days within which to depart from the United States,’’ but silent on the reason for the 60-day period of departure). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 60547 extend, change, or otherwise maintain lawful status. DHS thinks that 30 days is an adequate period for F–1 students to prepare for departure and is in line with similar categories (the M and J departure periods) but welcomes comments on whether a different period for departure would be more appropriate for the F nonimmigrant classification, including whether there are meaningful distinctions between F nonimmigrant students and both J exchange visitors and M vocational students that should be considered. DHS also welcomes comments regarding whether the 30-day departure period should be reflected in the Form I–94. See proposed 8 CFR 214.2(f)(5)(v) and (f)(10)(ii)(D). Additionally, in the 2016 rulemaking establishing a 10-day grace period for certain nonimmigrant classifications, DHS chose to remove the phrase ‘‘to prepare for departure from the United States or to seek an extension or change of status based on a subsequent offer of employment’’ from the proposed regulatory text relating to the purpose of the grace period, with the justification that it was unnecessarily limiting and did not fully comport with how the existing 10-day grace period may be used by individuals in the H, O and P nonimmigrant [visa] classifications.108 DHS clarified that the 10-day grace period may be granted to these nonimmigrants at time of admission or upon approval of an extension of stay or change of status and may be used for other permissible non-employment activities such as seeking to change one’s status to that of a dependent of another nonimmigrant or vacationing prior to departure.109 DHS notes that seeking an extension of stay or change of status is an allowable activity for F aliens during the 30 day departure period following the completion of their program and believes this same clarification should be incorporated into this proposed rulemaking. See proposed 8 CFR 214.2(f)(5)(iv). DHS also proposes to clarify that the proposed period to prepare for departure or otherwise maintain status is 30 days from the Form I–94 (or successor form) end date or the expiration date noted on the Employment Authorization Document (Form I–766 or successor form), as applicable, to prepare for departure from the United States, or otherwise obtain lawful status. See proposed 8 CFR 214.2(f)(5)(iv). Finally, DHS proposes to retain the current regulatory language that allows a 15-day period for departure from the United States if an alien is authorized by the DSO to withdraw from classes, but no additional time for departure if the alien fails to maintain a full course of study without the approval of the DSO or otherwise fails to maintain status. See 8 CFR 214.2(f)(5)(iv). Because DSOs generally authorize withdrawal based on compelling academic or medical circumstances when a student proactively requests permission, DHS believes retaining the 15-day period is appropriate. However, aliens who fail to maintain their full course of study or otherwise impermissibly violate their status are required to immediately depart the United States, as is consistent with other nonimmigrant categories. DHS considered allowing a short ‘‘grace period’’ for departure after an EOS denial, but does not see a compelling reason to treat F nonimmigrants who have received a denial more favorably than other nonimmigrant categories. As in other nonimmigrant categories, failure to immediately depart under these circumstances could result in accrual of unlawful presence and subject an individual to removal. 108 Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82,398, 82402, 82437 (Nov. 18, 2016). 109 Id at 82437. 110 Under INA 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A), 65,000 aliens may be issued H–1B visas or otherwise provided H–1B nonimmigrant status in a fiscal year. This limitation does not PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 iv. Automatic Extension of Status 1. Authorized Status and Employment Authorization Under 8 CFR 214.2(f)(5)(vi) Each year, a number of U.S. employers seek to employ F–1 students and file a Form I–129, Petition for a Nonimmigrant Worker, with USCIS, along with a change of status request, to obtain classification of the F–1 student as an H–1B nonimmigrant worker. The H–1B nonimmigrant visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations, defined by statute as occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent. See INA sections 101(a)(15)(H)(i)(b) and 214(i); 8 U.S.C. 1101(a)(15)(H)(i)(b) and 1184(i). The H–1B classification, however, is subject to annual numerical allocations. See INA sections 214(g)(1)(A) and (g)(5)(C); 8 U.S.C. 1184(g)(1)(A) and (g)(5)(C).110 For E:\FR\FM\25SEP2.SGM Continued 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 60548 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules purposes of the H–1B numerical allocations, each fiscal year begins on October 1. Petitioners may not file H–1B petitions more than six months before the date of actual need for the employee.111 Thus, the earliest date an H–1B cap-subject petition may be filed for an allocation for a given fiscal year is April 1, six months prior to the start of the applicable fiscal year for which initial H–1B classification is sought. Many F–1 students complete a program of study or post-completion OPT in mid-spring or early summer. Per current regulations, after completing their program or post-completion OPT, F–1 students have 60 days (which DHS is proposing to change to 30 days) to take the steps necessary to maintain legal status or depart the United States. See 8 CFR 214.2(f)(5)(iv). However, because the change to H–1B status cannot occur until October 1, an F–1 student whose program or post-completion OPT expires in mid-spring has two or more months following the 60-day period before the authorized period of H–1B status can commence. To address this situation, commonly known as the ‘‘capgap,’’ DHS established regulations that automatically extended F–1 D/S and, if applicable, post-completion OPT employment authorization for certain F– 1 nonimmigrants to October 1 for eligible F–1 students. See 8 CFR 214.2(f)(5)(vi). The extension of F–1 D/ S and OPT employment authorization is commonly known as the ‘‘cap-gap extension.’’ DHS proposes to retain the cap-gap provisions automatically granting, for a certain period of time, the extension of F–1 students’ stay and grant of employment authorization for aliens who are the beneficiaries of timely filed H–1B cap-subject petitions with an employment start date of October 1, and requesting a change of status. Under current regulations, the automatic capgap extension is valid only until October 1 of the fiscal year for which H– 1B status is being requested. See 8 CFR 214.2(f)(5)(vi). With the consistently high volume of H–1B petitions each year, however, USCIS has been unable to complete adjudication of H–1B capsubject petitions by October 1, resulting in situations where some individuals must stop working on October 1 because the employment authorization provided under 8 CFR 214.2(f)(5)(vi) terminates on that date, although generally these apply to aliens who have earned a master’s or higher degree from a U.S. institution of higher education, as defined in 20 U.S.C. 1001(a), until the number of aliens who are exempted from such numerical limitation during such year exceeds 20,000. INA 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). 111 See 8 CFR 214.2(h)(2)(i)(I). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 individuals may remain in the United States while the H–1B change of status application is pending.112 To account for this operational issue, DHS is proposing to revise 8 CFR 214.2(f)(5)(vi) to provide an automatic extension of F–1 status and postcompletion OPT, as applicable, until April 1 of the fiscal year for which the H–1B petition is filed. The F–1 student would not need to file a separate EOS if their fixed date of admission passed during the period before April 1, as this provision would extend the applicant’s F–1 status automatically if an H–1B petition requesting a change of status is timely filed on behalf of the F–1 student. See proposed 8 CFR 214.2(f)(5)(vi)(A). However, if the F–1 student’s COS is still pending at the end of the cap-gap period, then his or her employment authorization would terminate on March 31, and the applicant would no longer be employment authorized on this basis as of April 1. If the H–1B petition underlying the cap-gap extension is denied, then, consistent with existing USCIS practice, the F–1 beneficiary of the petition, as well as any F–2 dependents, will receive the standard F–1 grace period (which this rule proposes to change to 30 days) to depart the United States. DHS believes that proposing to change the automatic extension end date from October 1 to April 1 would avoid disruptions in employment authorization that some F nonimmigrants seeking cap gap extensions have been experiencing over the past several years. DHS fully expects USCIS would be able to adjudicate all H–1B cap-subject petitions requesting a change of status from F–1 to H–1B by that April 1 deadline. In addition to avoiding employment disruptions, the lengthier extension of F status and employment authorization for aliens with pending H–1B petitions until April 1, up to one year, depending on when the H–1B petition was filed, accounts for USCIS’ competing operational considerations and would enable the agency to more appropriately balance workloads across petition types. DHS is also proposing to clarify that the cap-gap provision does not authorize employment for dependents 112 In 2018, USCIS issued a web alert notifying the public that significant numbers of beneficiaries would lose their employment authorization and stating that individuals can generally remain in the United States without accruing unlawful presence while their application is pending, provided they do not work without authorization, available at https://www.uscis.gov/news/alerts/f-1-cap-gapstatus-and-work-authorization-extension-onlyvalid-through-sept-30-2018 (last visited Jan. 12, 2020). PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 who seek to change status from F–2 status to H–1B or H–4 (spouse or child of H nonimmigrant) status. See proposed 8 CFR 214.2(f)(5)(vi)(D). Dependents may not accept employment as an F–2 nonimmigrant. Thus, there is no work that would be disrupted by a loss of employment authorization while the F–2 dependent’s COS application remains pending with USCIS for adjudication. As is the case under the current regulation, an F–1 nonimmigrant’s automatic extension of status under the cap-gap provision also applies to his or her F–2 dependents who timely file a change of status application to H–4.113 DHS believes that these changes would result in more flexibility for both students and the Department and would help to avoid disruption to U.S. employers who are lawfully employing F–1 students while a qualifying H–1B petition is pending. However, DHS is concerned with the impacts of this provision on U.S. workers and students, especially if it would result in increased competition for certain jobs, and invites comments from the public on this issue. 2. F–1 Status and Employment Authorization While EOS and Employment Authorization Applications Are Pending DHS proposes to strike ‘‘duration of status’’ from 8 CFR 214.2(f)(5)(vi) and clarify that an alien with F–1 status whose admission period as indicated on his or her Form I–94 has expired, but who has timely filed an EOS application, would be authorized to continue pursuing a full course of study after the end date of his or her admission until USCIS adjudicates the EOS application. See proposed 8 CFR 214.2(f)(5)(vii). This change would provide ongoing authorization to continue studies as long as the student has timely filed his or her EOS and will not penalize students if USCIS is unable to adjudicate an EOS application before a student’s new term or course of study is underway. In such cases, students would be able to continue pursuing their full course of study. The shift to a fixed date of admission has implications for employment authorization. Currently, DSOs may authorize certain types of employment authorization, including on campus employment and CPT,114 and students generally do not need to be concerned about a specific expiration date for their student status, and thus their employment authorization, because they 113 8 CFR 214.2(f)(5)(vi)(D). 8 CFR 214.2(f)(10)–(12), 8 CFR 274a.12(b)(6)(iv). 114 See E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules are admitted for duration of status. This rule would change that framework with different implications for various types of employment authorization. For on-campus employment where no EAD is needed, DHS proposes to allow aliens in F–1 status to continue to be authorized for on-campus employment while their EOS applications with USCIS are pending, not to exceed a period of 180 days.115 See proposed 8 CFR 214.2(f)(5)(vii). If the EOS application is still pending after 180 days have passed, the F–1 student would no longer be authorized for employment and would need to stop engaging in on-campus employment. DHS is proposing a 180-day automatic extension period in order to minimize disruptions to on-campus employment by teaching assistants, post-graduates working on research projects, and other positions that are integral to an F–1 student’s educational program. A 180day period would be consistent with the other automatic extension for F–1 STEM OPT students.116 That timeframe has been in existence since 2008 and DHS expects the F–1 population of students and employers to be familiar with it. DHS welcomes comments on whether the 180 day period of automatic extension for employment is an appropriate time period. Likewise, DHS is proposing an automatic extension of off-campus employment authorization for up to 180-days during the pendency of the EOS application, for F–1 aliens who have demonstrated severe economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C). These circumstances may include loss of financial aid or oncampus employment without fault on the part of the student, substantial fluctuations in the value of currency or exchange rate, inordinate increases in tuition and/or living costs, unexpected changes in the financial condition of the student’s source of support, medical bills, or other substantial and unexpected expenses. Id. In such cases, DHS believes a 180-day automatic extension of employment authorization would help alleviate the severe economic hardship and avoid a disruption in their employment, especially given the fact that an Employment Authorization Document is required and frequency at which these students must submit an application for 115 See 8 CFR 214.2(f)(9)(i) for a description of oncampus employment. For on-campus employment that is based on severe economic hardship resulting from emergent circumstances pursuant to 8 CFR 214.2(f)(5)(v), see later discussion for additional restrictions. 116 8 CFR 274a.12(b)(6)(iv). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 employment authorization.117 Additionally, given that USCIS’ average EAD processing time is typically 90–120 days, a 180-day timeframe provides sufficient flexibility in case of unexpected delays.118 A longer autoextension period for automatic extension of employment authorization is unnecessary. For F–1 aliens granted off-campus employment authorization on the basis of severe economic hardship resulting from emergent circumstances pursuant to 8 CFR 214.2(f)(5)(v), DHS is proposing an automatic extension of such employment authorization with a different validity period than the general 8 CFR 214.2(f)(9)(ii)(C) severe economic hardship employment authorization extension described above while their EOS applications are pending. As first promulgated in 1998, the regulations provide necessary flexibility to address unforeseeable emergencies by allowing DHS, by notice in the Federal Register, to suspend the applicability of some or all of the requirements for on- and off-campus employment authorization for specified F–1 students where an emergency situation has arisen calling for this action. These F–1 students must continue to attend classes, but are allowed to take a reduced course load. By regulation, aliens must take at least 6 semester or quarter hours of instruction at the undergraduate level or 3 semester or quarter hours of instruction at the graduate level. See 8 CFR 214.2(f)(5)(v). Failure to take the required credits could be considered a failure to maintain F–1 status. The special student relief (SSR) regulations are announced by notice in the Federal Register and that employment may only be undertaken during the validity period of the SSR notice. Currently, any extension of SSR-based employment would have to be granted before the expiration of the prior grant of SSR employment-based employment authorization, if it is not granted before the expiration of the prior authorization, the student must stop working under that SSR-based employment authorization benefit, until the renewal is reauthorized. Because students are currently admitted for D/S, these aliens 117 See 8 CFR 274a.12(c)(3). 8 CFR 214.2(f)(9)(ii)(F)(2) provides that employment authorization based upon severe economic hardship may be granted in one-year intervals up to the expected date of completion of the student’s current course of study. 118 See Check Case Processing Time, available at https://egov.uscis.gov/processing-times/ (last visited June 19, 2020). The Potomac Service Center, which adjudicates all applications for Employment Authorization for Optional Practical Training, lists processing times from 3.5 to 5.5 months. PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 60549 generally do not have to be concerned about their F–1 period of authorized stay. However, with the shift to a fixed admission period, these aliens would have to be cognizant of that date in order for the EOS to be approved. DHS believes it is appropriate to provide an automatic extension of SSR-based employment so aliens’ ability to benefit from this long-standing regulatory relief is not interrupted by USCIS processing times. Consistent with existing practice for certain nonimmigrants who require an EAD,119 DHS proposes to automatically extend SSR authorization if an F–1 alien has a timely-filed EOS pending for up to the end date stated in the Federal Register notice announcing the suspension of certain requirements, or 180 days, whichever is earlier. As evidence of these automatic extensions of employment authorization, DHS is proposing that the F–1 aliens’ Form I–94 (or successor form) or Employment Authorization Document (EAD, Form I–766, or successor form), for F–1s requiring an EAD, when combined with a notice issued by USCIS indicating receipt of a timely filed extension of stay application (such as the Form I–797), would be considered unexpired until USCIS issues a decision on the EOS application, not to exceed 180 days. See proposed 8 CFR 214.2(f)(5)(vii). SSRbased employment authorization that has been automatically extended can be evidenced by the F–1 alien’s EAD and receipt notice issued by USCIS (the Form I–797), not to exceed the lesser of 180 days or the end date stated in the Federal Register notice announcing the suspension of certain requirements. DHS believes that continued employment authorization for aliens wishing to work as an intern for an international organization, engage in CPT, or in pre- or post-completion OPT present materially different circumstances from those pertaining to aliens who are experiencing emergent circumstances, severe economic hardship, or engaging in on campus employment, and that the same automatic extension policies therefore should not apply to them. First, related to the employment authorization requests to engage in an internship with an international organization, such requests arise when a student has an opportunity for an internship with certain organizations and these make up a smaller proportion of employment authorization applications. These requests are not tied to economic necessity or emergent circumstances. Therefore, DHS is not 119 See E:\FR\FM\25SEP2.SGM 8 CFR 274a.13(d). 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 60550 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules recommending an automatic extension of employment authorization while these aliens have a timely filed EOS pending. Second, students engaging in CPT or pre-completion OPT are still enrolled in school and pursuing a curriculum. DHS expects that DSOs would not authorize any practical training for a length of time beyond their fixed date of admission on the I–94, so an automatic extension of employment authorization would be inappropriate. DHS proposes to add a sentence at the end of 8 CFR 214.2(f)(10)(i) stating that curricular practical training may not be granted for a period exceeding the alien’s fixed date of admission as noted on his or her Form I–94, and that such alien must not engage in curricular practical training until USCIS approves his or her timelyfiled EOS request. See proposed 8 CFR 214.2(f)(10)(i). Third, where a student timely files an EOS and an application to engage in post-completion OPT employment, DHS believes the current and longstanding policy of obtaining authorization from USCIS, in the form of an EAD, before an alien may work in the United States is appropriate. Applications must be reviewed and adjudicated to determine that students are eligible for OPT. Students engaging in post-completion OPT often have less contact with their schools and DSOs, and this underscores the importance for DHS to directly examine these applicants, ensuring that their contact information is accurate, as well as checking that they have not engaged in any unauthorized activities. DHS does not propose any changes to the STEM OPT extension provision at 8 CFR 274a.12(b)(6)(iv) under which an Employment Authorization Document issued for OPT is automatically extended for a period of up to 180 days while a timely filed application for employment authorization (Form I–765) for STEM OPT extension is pending. Students who are eligible for the STEM OPT extension have previously applied for OPT and received an EAD. Their applications were adjudicated by USCIS to determine that they were eligible for OPT. In addition, the STEM OPT program has requirements and safeguards for both students and employers that other practical training programs do not. For example, the student’s STEM OPT employer is required to be enrolled in E-Verify, and the terms and conditions of a STEM practical training opportunity, including duties, hours, and compensation, must be commensurate with the terms and conditions applicable to the employer’s similarly situated U.S. workers in the area of employment. See 8 CFR VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 214.2(f)(10)(ii)(C)(7). DHS also has oversight into this program through site visits to employer locations in which STEM OPT students are employed. Thus, DHS does not think changes to the automatic extension provision are needed. Finally, DHS is proposing some technical amendments. In 8 CFR 214.2(f)(9)(i), the word ‘‘Commissioner’’ would be replaced by ‘‘Secretary’’; the term ‘‘residents’’ following ‘‘United States’’ would be replaced by ‘‘workers’’ for better accuracy; the term ‘‘Form I–20 A–B’’ would be replaced by the currently used form, ‘‘Form I–20’’; and the end of the paragraph would be revised to clarify that an alien who has a timely filed application for an EOS may engage in on-campus employment for a period not to exceed 180 days, or until USCIS approves his or her application, whichever is earlier. See proposed 8 CFR 214.2(f)(9)(i). DHS also proposes to strike and reserve 8 CFR 214.2(f)(10)(i)(A), which refers to a nonSEVIS process for requesting curricular practical training authorization. Because all schools enrolling F students must be SEVP-certified and use SEVIS to indicate CPT authorization, the provision is outdated. See proposed 8 CFR 214.2(f)(10)(i)(A). v. New Process for EOS Applications Under current regulations, F–1 students are able to obtain a program extension from a DSO as long as they are maintaining status and making normal progress toward the completion of their educational objectives. See 8 CFR 214.2(f)(7)(i) and (iii). The problem with the ‘‘normal progress’’ standard is that it is undefined, and DHS believes that retaining it could lead to inconsistent adjudications. Even now, the lack of a standard definition for normal progress leads DSOs to inconsistently extend F–1 students’ program end dates and thus their stay in the United States. Some DSOs use a strict standard, evaluating, for example, documentation to support a student’s claim of a compelling medical illness that serve as the basis for the student’s request for extension of the student’s current program. However, other DSOs claim that the student is making ‘‘normal progress’’ whenever a student simply needs more time to complete the program. This inconsistency results in some students being able to remain in F–1 status for years simply by having the DSO update the Form I–20 without providing a justification as to how the student is making ‘‘normal progress’’ and what academic or medical circumstances necessitate the extension of the program. PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 Therefore, DHS proposes not to use a ‘‘normal progress’’ standard with respect to seeking an extension of an authorized period of stay. In addition to the requirement that the applicant obtain an I–20 from the DSO recommending extension of the program, the applicant will be required to file an EOS application to request additional time to complete their current course of study beyond their authorized period of admission. See proposed 8 CFR 214.2(f)(7)(i). Apart from pursuing a new course of study, DHS appreciates that the time for study can legitimately fluctuate given the changing goals and actions of the student. For example, a student may experience compelling academic or medical reasons, or circumstances beyond their control that cause them to need additional time in the United States beyond the predetermined end date of the program in which they were initially enrolled. DHS understands these circumstances arise and believes these scenarios present an appropriate situation for the Department to directly evaluate the nonimmigrant’s eligibility for additional time in the United States. However, instead of effectively extending their stay through a DSO’s program extension recommendation in SEVIS, students would have to obtain an I–20 from the DSO recommending a program extension and apply to USCIS for an extension of stay. Immigration officers thereby would be able to conduct appropriate background and security checks on the applicant at the time of the extension of stay application and directly review the proffered evidence to ensure that the alien is eligible for the requested extension of stay, including through assessing whether the alien remains admissible. See 8 CFR 214.1(a)(3)(i). In these circumstances, the Department would only extend the stay beyond the prior admission date (typically the program end date for which the student was admitted to the United States as a F–1 nonimmigrant or was granted based on a change of status or extension of stay) of an otherwise eligible F–1 student requesting additional time to complete their program if the additional time needed is due to a compelling academic reason, documented medical illness or medical condition, or circumstance that was beyond the student’s control. As with all nonimmigrant extensions of stay, an alien seeking an extension of stay generally must have continually maintained status.120 And if a student 120 Failure to file before the expiration of the previously accorded status or failure to maintain E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules dropped below a full course of study, that drop must have been properly authorized. Students seeking extensions of stay must primarily be seeking to temporarily stay in the United States solely to pursue a full course of study, INA section 101(a)(15)(F)(i), 8 U.S.C. 1101(a)(15)(F)(i), not for other reasons separate from, or in addition to, pursuing a full course of study. By way of illustration, a student with a fixed date of admission may request an additional 4 months to complete his program because he was authorized to drop below a full course of study for one semester due to illness. The student would need to request an updated I–20 from the DSO recommending a program extension. In such an instance, an immigration officer could review the proffered evidence and ensure that the claim is supported by documentation from a medical doctor. Conversely, a student may request an EOS for additional time to complete an associate program, but fail to submit evidence they were properly authorized to drop below a full course of study. Under the proposed regulation, the immigration officer would have discretion to request transcripts from the student. If a student’s transcripts reflect the student failed multiple classes one semester, an immigration officer could determine the student has failed to maintain status due to a failure to carry a full course of study as required. In another example, a student could submit an EOS request to continue in the same program because he or she was unable to take all the required classes for his or her major due to over-enrollment at the school. Again, an officer could request additional information, if needed, to determine that the student was maintaining a full course of study (or, if not, was properly authorized to reduce his or her course load), but due to the school’s high enrollment, the student may validly require an additional semester to complete the degree requirements in order to graduate. Therefore, DHS is proposing to eliminate a reference to ‘‘normal progress’’ with respect to seeking a program extension, and incorporate a new standard that makes it clear that acceptable reasons for requesting an extension of a stay for additional time to complete a program are: (1) Compelling academic reasons; (2) a such status may be excused at the discretion of USCIS if the alien demonstrates that at the time of filing: The delay was due to extraordinary circumstances beyond the control of the applicant, and USCIS finds the delay commensurate with the circumstances, the alien has not otherwise violated his or her status, and is not subject to deportation. 8 CFR 214.1(c)(3)(viii). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 documented illness or medical condition; and (3) exceptional circumstances beyond the control of the alien. See proposed 8 CFR 214.2(f)(7)(iii).121 The first two factors are based on the current regulatory provisions for program extension, 8 CFR 214.2(f)(7)(iii), from current text (i.e., changes of major or research topics, and unexpected research problems). DHS proposes to clarify that, in addition to academic probation and suspension, a pattern of behavior which demonstrates a student’s repeated inability or unwillingness to complete his or her course of study, such as failing classes, is not an acceptable reason for an extension of stay for additional time to complete a program. See proposed 8 CFR 214.2(f)(7)(iii)(B)(1). Current program extension requirements do not address students who have failed to carry a full course of study due to failed classes in an academic term or students who have a pattern of failing grades during their studies. DHS expects bona fide students to be committed to their studies, attending classes as required, carrying a full course of study, and making reasonable efforts toward program completion. Passing a class, or not, is something that is within the student’s control. Therefore, a student who has a pattern of failing grades or has failed to carry a full course of study due to failing grades would not be qualified for an extension of stay. This prohibition would not include students, such as those university students who, pursuant to DHS regulations, are permitted to take 12 semester hours of coursework and, therefore, necessarily would not complete their programs within 4 years. Absent academic probation or suspension, or negative factors such as repeatedly failing classes, these students would be eligible for extension based upon compelling academic reasons. This prohibition would also not include cases where the student was properly authorized to drop below a full course of study due to academic difficulties or medical conditions or has been reinstated to student status based on a reduction in course load that would have been within a DSO’s power to authorize. The student would be expected to provide evidence demonstrating the compelling 121 DHS does not propose to update the term ‘‘normal progress’’ as defined in 8 CFR 214.2(f)(6)(i)(E) because the Department does not feel it addresses the same concerns as it does at 8 CFR 214.2(f)(5). The provision at 8 CFR 214.2(f)(6)(i)(E) relates to study at an approved private elementary or middle school or public or private academic high school. In that context, it is clear that ‘‘normal progress’’ is the completion of the academic year (for example, 6th grade). PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 60551 academic reason in order for the DSO to recommend program extension and then the student may apply for extension of stay. While a letter from the student may be sufficient to meet his or her burden of proof, an immigration officer will evaluate the individual case and make the determination if additional evidence (such as a letter from a member of the school administration or faculty) is needed to adjudicate the case. Next, DHS is proposing to clarify that a student can qualify for a program extension and corresponding extension of stay based on a medical reason, but it must be a documented illness or medical condition. To provide an objective standard, DHS proposes to codify standards already included in 8 CFR 214.2(f)(6)(iii)(B), which requires a student to provide medical documentation from a licensed medical doctor, doctor of osteopathy, or licensed clinical psychologist to substantiate the illness or medical condition if seeking a reduced course load. See proposed 8 CFR 214.2(f)(7)(iii)(B)(2). As this is already a long-standing requirement for DSOs and students in a similar context, DHS believes that it would be appropriate and easy to implement in the program extension and corresponding extension of stay process. Further, requiring applicants to provide documentation of their medical illness or medical condition that caused their program delay is a reasonable request, because they are asking DHS to provide them additional time in the United States. DHS is also proposing a new factor in the extension of stay provisions— circumstances beyond the student’s control, including a natural disaster, a national health crisis, or the closure of an institution. See proposed 8 CFR 214.2(f)(7)(iii)(B)(3). As in the reinstatement context, DHS believes that there might be additional reasons beyond compelling academic or documented medical reasons that result in a student’s inability to meet the program end date listed on the Form I– 20. Therefore, DHS is proposing a third prong that would encompass scenarios that are not envisioned in the current provisions governing the extension of a program end date, such as those noted above. Some of these examples are currently in the reinstatement provisions, 8 CFR 214.2(f)(16)(i)(F), and DHS believes that they merit favorable consideration in extension requests. However, the circumstances surrounding the closure of a school, if relevant, may be considered in determining whether the student qualifies for an extension of stay. For E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 60552 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules example, if a school closes as a result of a criminal conviction of its owners for engaging in student visa fraud by not requiring students to attend, and the student is unable to demonstrate that he or she was attending classes prior to closure as required to fulfill a full course of study, the closure of the institution might not qualify the student for a program extension. The requirements to timely request an extension of the program end date would remain largely unchanged; however, DHS proposes a technical change to replace all references to the DSO ‘‘granting’’ an extension of the program with the term ‘‘recommend’’ an extension of the program in order for the student to file for EOS because USCIS, not the DSO, would ‘‘grant’’ the extension of stay. See proposed 8 CFR 214.2(f)(7)(iii)(C). For example, a student may not necessarily be granted an extension of stay by USCIS if an adjudicator determines the student has not actually maintained status or does not actually have compelling academic or documented medical reasons for the delay, despite the DSO’s recommendation for program extension. Where the alien requests a recommendation to extend the program end date, the DSO could only make a recommendation to extend the program if the alien requested the extension before the program end date noted on the most recent Form I–20, or successor form. Id. Additionally, consistent with changes throughout this NPRM, once the DSO recommends the extension of the program, the alien would need to timely file for an EOS on the form and in the manner designated by USCIS, with the required fees and in accordance with the filing instructions, including any biometrics required by 8 CFR 103.16 and a valid, properly endorsed Form I–20 or successor form, showing the new program end date, id., barring extraordinary circumstances, see 8 CFR 214.1(c)(4). If seeking an EOS to engage in any type of practical training, the alien in F– 1 status would also need to have a valid Form I–20, properly endorsed for practical training, and be eligible to receive the specific type of practical training requested. Finally, as with all immigration benefit requests, an immigration officer would generally not grant an EOS where an alien in F–1 status failed to maintain his or her status. Id. Finally, a student’s failure to timely request from the DSO a recommendation for extension of the program end date, which would result in the DSO recommending an extension of the program end date in SEVIS after VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 the end date noted on the most recent Form I–20 or successor form, would require the alien to file for a reinstatement of F–1 status, because the alien would have failed to maintain status and would be ineligible for an EOS. See proposed 8 CFR 214.2(f)(7)(iii)(D). A request for reinstatement must be filed in the manner and on the form designated by USCIS, with the required fee, including any biometrics required by 8 CFR 103.16. DHS is also requiring F–2 dependents seeking to accompany the F–1 principal student to file applications for an EOS or reinstatement, as applicable. These requirements are consistent with current provisions. With the transition from D/S to admission for a fixed time period, F–1 students would need to apply for an EOS directly with USCIS, by submitting the appropriate form and following the requirements outlined in the form instructions. USCIS anticipates accepting the Form I–539, Application to Change/Extend Nonimmigrant Status, for this population but would like the flexibility to use a new form if more efficient or responsive to workload needs. Thus, DHS is proposing to use general language to account for a possible change in form in the future. If the form ever changes, USCIS would provide stakeholder’s advanced notice on its web page and comply with Paperwork Reduction Act requirements. Like all other aliens who file a Form I–539, F–1 applicants would be required to submit biometrics and may be required to appear for an interview pursuant to 8 CFR 103.2(b)(9). In addition, applicants would need to demonstrate that they are eligible for the nonimmigrant classification sought. Accordingly, applicants must submit evidence of sufficient funds to cover expenses. A failure to provide such evidence would render the applicant ineligible for the extension of stay. See proposed 8 CFR 214.2(f)(7)(iv). While the sponsoring school is required to verify the availability of financial support before issuing the Form I–20, they may not be well-versed in foreign documentation submitted by applicants and circumstances may change between issuance of a Form I– 20 and a request for an extension of stay Further, it is incumbent upon DHS to determine the veracity of the evidence submitted, and officers must ensure that the student has sufficient funds to study in the United States without resorting to unauthorized employment. The phrase ‘‘sufficient funds to cover expenses’’ is referred to in Department of State regulations concerning issuance of F PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 and M nonimmigrant student visas, 22 CFR 41.61(b)(1)(ii), and Department of State policy requires an applicant to provide documentary evidence that sufficient funds are, or will be, available to defray all expenses during the entire period of anticipated study.122 While this does not mean that the applicant must have cash immediately available to cover the entire period of intended study, which may last several years, the applicant must demonstrate enough readily available funds to meet all expenses for the first year of study.123 DHS believes requiring evidence of financial resources to cover expenses for one year of study is reasonable given that F students are familiar with this requirement because this is the standard used by the Department of State in the issuance of F nonimmigrant visas. DHS also considers that this standard is appropriate because it establishes concrete resources for one full academic year of the program. Further, applicants must demonstrate that, barring unforeseen circumstances, adequate funds will be available for each subsequent year of study from the same source or from one or more other specifically identified and reliable financial sources. Such evidence for one year and subsequent years could include, but is not limited to: Complete copies of detailed financial account statements for each account intended to be used to fund the student’s education; other immediately available cash assets; receipts and/or a letter from the school accounts office indicating tuition payments already made and any outstanding account balance; affidavits of support from a sponsor; proof of authorized private student loans; 124 and/or other financial documentation. F–1 applicants would need to timely file their EOS application—meaning that USCIS would need to receive the application on or before the date the authorized admission period expires. See proposed 8 CFR 214.2(f)(7)(v). This timeframe would include the 30-day period of preparation for departure allowed after the completion of studies or any authorized practical training. However, if the extension application is received during the 30-day period of preparation for departure provided in proposed 8 CFR 214.2(f)(5)(iv) following the completion of studies, the alien in F–1 status may continue studying but may not continue or begin engaging in practical training or other employment until the extension request is approved 122 See 9 FAM 402.5–5(G). 123 Id. 124 Federal student loans are only available to U.S. citizens and permanent residents. E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules and, as applicable, an employment authorization document is issued. See proposed 8 CFR 214.2(f)(7)(v). The length of the extension granted could be up to the period of time needed to complete the program or requested practical training, not to exceed 4 years, unless the alien is a border commuter, enrolled in language training, attending a public high school, or the two-year limits on admission at paragraph (f)(20) apply in which case further restrictions apply, as described above. By permitting admission only ‘‘up to’’ the prescribed period, USCIS and CBP are afforded discretion as to the ultimate length of time to grant the applicant, and consider factors such as program length. Additionally, this proposal would replace the current provision at 8 CFR 214.2(f)(7)(iv), which references SEVIS and non-SEVIS schools and is outdated. F–2 dependents seeking to accompany the F–1 principal student would need to file applications for an EOS or reinstatement, as applicable. See proposed 8 CFR 214.2(f)(7)(vii). Dependent F–2 spouses and children seeking to accompany the principal F– 1 student during the additional period of admission would need to either be included on the primary applicant’s request for extension or properly file their own EOS applications on the form designated by USCIS. If the dependent files a separate Form I–539, he or she would need to pay a separate Form I– 539 filing fee. However, if the dependent files a Form I–539A as part of the primary applicant’s EOS request on a Form I–539, only one fee would be required. USCIS would need to receive the extension applications before the expiration of the previously authorized period of admission, including the 30day period following the completion of the course of study, as indicated on the F–2 dependent’s Form I–94. To qualify for an EOS, the F–2 dependent would need to demonstrate the qualifying relationship with the principal F–1 student who is maintaining status, also be maintaining his or her own status, and not have engaged in any unauthorized employment. See proposed 8 CFR 214.2(f)(7)(vii). Extensions of stay for F–2 dependents would not be able to exceed the authorized admission period of the principal F–1 student. Id. Under proposed 8 CFR 214.2(f)(7)(viii), if USCIS denies the request for an extension, and the period of admission for the student and his or her dependents has expired, then the student and his or her dependents would need to immediately depart the VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 United States. As with other nonimmigrant categories, they would not be given any period of time to prepare for departure from the United States after the denial, and there may be significant immigration consequences for failing to depart the country immediately. For example, such aliens generally would begin to accrue unlawful presence the day after the issuance of the denial. DHS believes this standard provides parity across nonimmigrant categories and invites the public to submit comments on this issue as well as the proposed EOS application process. vi. School Transfers and Changes in Educational Levels As discussed above, a significant concern with the current D/S framework is that it has enabled ‘‘pay-to-stay’’ fraud in which school owners falsely report to DHS that a student is maintaining status in return for cash payments even though the student is not attending or is otherwise violating his or her status. In some cases, school owners have operated multiple schools and transferred students between these schools to conceal this fraud. For example, in 2018, a defendant was sentenced by a federal judge in the Central District of California to 15 months in prison and ordered to forfeit more than $450,000 for running such a scheme involving three schools that he owned.125 Furthermore, as discussed more thoroughly in Section 4.L.ii above, the D/S framework has enabled some aliens to become ‘‘professional students’’ who spend years enrolled in programs at the same educational level (for example, multiple associate programs) or complete programs at one educational level and enroll in lower educational levels (such as completing a master’s degree then enrolling in an associate program). DHS believes the proposed changes previously discussed regarding admission for a fixed time period and limitations on program changes within and between educational levels will help to address these concerns and serve to further strengthen the integrity of the F nonimmigrant visa category by better ensuring that aliens are in the United States primarily to study, rather than to 125 DOJ Press Release, Owner of Schools that Illegally Allowed Foreign Nationals to Remain in U.S. as ‘Students’ Sentenced to 15 Months in Federal Prison, (Apr. 19, 2018), available at https:// www.justice.gov/usao-cdca/pr/owner-schoolsillegally-allowed-foreign-nationals-remain-usstudents-sentenced-15 (last accessed April 11, 2020). PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 60553 reside permanently in the United States. See proposed 8 CFR 214.2(f)(8)(i)(B). In addition to proposing new restrictions for the number of programs an F–1 nonimmigrant can complete at the same or a lower educational level, DHS proposes to retain some of the current school transfer and change of educational level conditions. First, as is the case currently, aliens would need to begin classes at the transfer school or program within 5 months of transferring out of the current school or within 5 months of the program completion date on his or her current Form I–20; and second, if the alien is authorized to engage in post-completion OPT, he or she must be able to resume classes within 5 months of changing programs or transferring out of the school that recommended OPT or the date the OPT authorization ends, whichever is earlier. See proposed 8 CFR 214.2(f)(8)(i)(A) and (B). Another indication of a violation of F–1 status is failing to pursue a full course of study at the school that the alien is authorized to attend. See proposed 8 CFR 214.2(f)(8)(ii). DHS is proposing to retain the current provisions, rendering aliens who do not pursue a full course of study ineligible to change programs or transfer schools, and is clarifying that failure to pursue a full course of study includes, but is not limited to, a student whose pattern of behavior demonstrates a repeated inability or unwillingness to complete his or her course of study, such as failing grades, resulted in the student not carrying a full course of study unless the student was previously authorized for a reduced course load. Just as delays caused by unacceptable patterns of behavior, academic probation or suspension would not be acceptable reasons for program extensions and corresponding EOS of a student’s current program, neither would they be an acceptable reason for failing to carry a full course load. Such aliens would have failed to maintain F status, are ineligible for a change of program and school transfers, and would be required to file for a reinstatement of status, if eligible. See proposed 8 CFR 214.2(f)(8)(ii). Finally, DHS proposes some technical updates. First, the Department would strike outdated provisions in 8 CFR 214.2(f)(8)(ii) to account for the fact that all schools must now be SEVP-certified and to clarify that the transfer provision applies only to transfers from a SEVIS school to a SEVIS school. See proposed 8 CFR 214.2(f)(8)(iii). Second, DHS proposes to update the current process by which DSOs notify USCIS of certain events, such as failure to maintain a full E:\FR\FM\25SEP2.SGM 25SEP2 60554 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 course load, to reflect the fact that SEVIS is used for this purpose and that a paper Form I–20 is no longer used for this purpose. See proposed 8 CFR 214.2(f)(8)(iv). Third, if the new program to which the student changes or transfers will not be completed within the authorized admission period established in paragraphs (f)(5)(i) or (f)(20) of this section, then, consistent with the other provisions throughout this proposed rule the F–1 student would need to apply for EOS in the manner and on the form designated by USCIS, with the required fee and in accordance with form instructions, together with a valid, properly endorsed Form I–20 indicating the new program end date, and would need to provide biometrics as authorized by 8 CFR 103.16. See proposed 8 CFR 214.2(f)(8)(v). not working prior to this application for post-completion OPT. Where the application for EOS and post-completion OPT are granted, the alien would receive an additional 30day period [from the program end date or EAD end date, as applicable to prepare for departure from or otherwise maintain status in the United States following the expiration of the status approved to complete post-completion OPT. See proposed 8 CFR 214.2(f)(5)(iv). 2. Proposed Changes to Form Name and Filing Timeframes DHS proposes to remove references in paragraphs 8 CFR 214.2(f)(11)(i)(A) and (C) to the Form I–765 currently used by nonimmigrants to request employment authorization and replace them with language used throughout the proposed rule: ‘‘by filing the form designated by USCIS with the required fee and in vii. OPT Employment Authorization accordance with form instructions.’’ The Department believes that such language 1. Pending Employment Authorization gives USCIS the flexibility to change the Requests form number or name without having to Currently, 8 CFR 214.2(f)(10)(ii)(D) engage in a full rulemaking. In all cases, provides for ‘‘duration of status’’ to DHS would provide applicants with include periods students spend in the advanced notice of which form to use United States on post-completion OPT. and the accompanying instructions. As D/S admissions would be replaced Additionally, DHS proposes technical with admission for a fixed time period changes in 8 CFR 214.2(f)(11), such as throughout this rulemaking, DHS is replacing the term ‘student’ with ‘alien proposing to clarify that an alien in F– in F–1 status’ and other edits 1 status recommended for postreorganizing and rewording some completion OPT must apply for paragraphs to improve readability. employment authorization and an EOS, The other change that DHS proposes and may not engage in post-completion regarding filing applications for OPTOPT unless such employment based employment authorization is to authorization is granted.126 See proposed provide more time for aliens to submit 8 CFR 214.2(f)(10)(ii)(D). their applications. Currently, the following filing deadlines are in place: Like several other types of • Pre-completion OPT: Aliens may employment, a student would need to file the application for employment stop working if USCIS does not authorization up to 90 days before being adjudicate the employment enrolled for one full academic year, authorization application before the provided that the employment will not specific end date for the period of begin prior to the completion of the full authorized stay is reached. While DHS academic year. 8 CFR recognizes the challenge presented by 214.2(f)(11)(i)(B)(1). the transition from a D/S regime to a • Post-completion OPT: File the fixed time period, the proposition that application for employment employment must cease until the EAD authorization up to 90 days before grant or renewal is approved is not program end date and no later than 60 unique to this scenario. 8 CFR days after program end date. 8 CFR 274a.13(d) automatically extends EADs 214.2(f)(11)(i)(B)(2). upon the filing of a renewal request for • STEM OPT: File the application for 180 days, after which the alien must cease employment if the renewal is still employment authorization up to 90 days before the expiration of current EAD pending. This policy is thus consistent and within 60 days of the DSO’s with the treatment of several other recommendation. 8 CFR nonimmigrant categories and DHS does 214.2(f)(11)(i)(C). not believe it would cause significant DHS proposes to increase the number disruption to F–1 students as most are of days applicants have to file prior to the program end date from 90 days to 126 The regulations set out the requirement that 120 days and shorten the number of F–1 nonimmigrants seeking OPT and STEM OPT days students have to file an application are required to apply for work authorization at 8 CFR 274a.12(c) and (c)(3). for post-completion OPT after the VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 program end date from 60 days to 30 days. See proposed 8 CFR 214.2(f)(11)(i)(B)(2). Likewise, DHS proposes to strike the requirement in 8 CFR 214.2(f)(11)(i)(B)(2) and (C) which require students file their Form I–765 with USCIS within 30 days and 60 days, respectively, of the date that the DSO enters the recommendation into SEVIS. DHS believes that such a timeframe for obtaining the DSO recommendation seems unnecessary given that students would always be required to first get their DSO’s recommendation before filing their Form I–765 requesting OPT employment authorization and a regulatory timeframe for submitting the I–765 is already in place. Once they get their DSO’s recommendation, they would then be eligible to file their Form I–765 within 30 days after their program end date or up to 120 days before the expiration of their current EAD. While USCIS anticipates timely processing these cases, there would be an increase in volume of EOS applications following the effective date of the final rule as those nonimmigrants who are required to file EOS begin to do so, and the Department believes that allowing applicants more time to file an EOS application would stagger the applications, helping to maintain a consistent volume. This, in turn, could enable USCIS to more efficiently manage this OPT-related workload, so the agency may be better equipped to adjudicate these requests in a timely manner and diminish the likelihood of gaps in employment. Additionally, DHS believes that shortening the filing window after the program end date would better align with the proposed period to prepare for departure. And, finally, DHS recommends technical changes such as replacing ‘‘shall’’ with ‘‘will’’ and clarifying edits throughout proposed 8 CFR 214.2(f)(11) for readability. viii. Temporary Absence From the United States of F–1 Student Granted Employment Authorization DHS proposes to strike and reserve 8 CFR 214.2(f)(13), which specifies how an F–1 student who has been granted employment authorization may apply for admission and resume employment, if readmitted to attend the same school which granted the employment authorization, when he or she returns to the U.S. from a temporary absence abroad. See 8 CFR 214.2(f)(13)(i) . The regulatory provision at 8 CFR 214.2(f)(13)(ii) states that an F–1 student who has an unexpired EAD, issued for post-completion practical training, and who is otherwise admissible, may return to the United States to resume E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules employment after a period of temporary absence. As DHS sets forth admission procedures to pursue off campus employment, post-completion training, and STEM OPT in proposed 8 CFR 214.1(a)(4)(i)(D), the reference in 8 CFR 214.2(f)(13) is redundant and could lead to confusion. ix. Border Commuter Students DHS proposes to replace ‘‘nonimmigrant student’’ with ‘‘alien with F–1 status’’ consistent with proposed revisions throughout the NPRM, and to strike the sentence referencing how ‘‘duration of status’’ is inapplicable to border commuter students because DHS is proposing to eliminate duration of status for all F nonimmigrants. See proposed 8 CFR 214.2(f)(18)(iii). khammond on DSKJM1Z7X2PROD with PROPOSALS2 F. Requirements for Admission, Extension, and Maintenance of Status of I Nonimmigrants i. Definition of Foreign Media Organization Changes in technology and in the way that the public consumes media information have raised novel questions as to whether certain individuals fit within the statutory and regulatory provisions that are applicable to representatives of foreign information media. To address these questions, DHS proposes to define a foreign media organization as ‘‘an organization engaged in the regular gathering, production, or dissemination via print, radio, television, internet distribution, or other media, of journalistic information and has a home office in a foreign country.’’ See proposed 8 CFR 214.2(i)(1). This proposal clarifies longstanding practice that the alien be a representative of a media organization with a home office in a foreign country by codifying what is considered a foreign media organization when seeking qualification as an I nonimmigrant.127 By requiring evidence that shows that the foreign organization that employs or contracts the I nonimmigrant has a home office in a foreign country, and that the office in a foreign country continues to operate while the I nonimmigrant is in the United States, DHS would help ensure that the I nonimmigrant, at the time of application for admission, change of status, or application for extension of stay, is a bona fide representative of foreign media organization. See 127 See generally USCIS Policy Manual, Vol. 2, Part K, Chap. 2. Available at https://www.uscis.gov/ policy-manual/volume-2-part-k-chapter-2 (last visited 6/18/2020); 22 CFR 41.52; 9 FAM 402.11– 3(a)(1). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 proposed 8 CFR 214.2(i)(2). Further, to conform to the statutory intent of the I classification, DHS is proposing to clarify and codify the DOS and USCIS long-standing practice interpreting ‘‘foreign information media’’ under INA 101(a)(15)(I) as ‘‘journalistic information.’’ This standard is in place when aliens apply for an I visa abroad or seek to change to I nonimmigrant status in the United States and aligns with statutory intent, which is to facilitate foreign press and journalism, rather than for entertainment or promotional purposes, such as performing or appearing on reality television programs. There are other options for those aliens, such as the P nonimmigrant classifications.128 DOS is the entity that determines whether an alien qualifies for an I visa, while USCIS is the entity that determines whether an alien who is in the United States in another nonimmigrant status can change to I status or whether an I alien who is already in the United States and seeks to change his or her employer or information medium continues to qualify for an I status. USCIS and DOS guidance discuss the distinction between journalistic content and content that is primarily for entertainment. DOS considers journalistic information as ‘‘content that is primarily informational in nature, such as the reporting on recent or important events, investigative reporting, or producing educational materials, such as documentaries. It does not include content that is primarily designed to provide entertainment rather than information, including scripted or contrived situations, such as most ‘‘reality television’’ shows. It also does not include most personal content, such as discussions of personal experiences in the United States or materials aimed at fan engagement, or works produced for promotional or marketing purposes.’’ 129 DOS’ definition aligns with current USCIS practice where the ‘‘officer should consider whether the intended use is journalistic, informational, or educational, as opposed to entertainment. The officer should also consider the foreign distribution of the film or video footage in addition to other factors, including the timeliness of the project relative to the subject event.’’ 130 128 INA section 101(a)(15)(P), 8 U.S.C. 1101(a)(15)(P). 129 See DOS guidance for consular officers adjudicating I visa applications at 9 FAM 402.11– 3. 130 See USCIS Policy Manual, Vol. 2, Part K, Chap. 3. Available at https://www.uscis.gov/policy- PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 60555 Consistent with DOS guidance and current USCIS practice, whether content is journalistic information would depend on the nature of the content featured on the new media outlet. For example, a political blogger traveling to the United States to cover an election could qualify for I status, as election coverage would generally be considered journalistic information. In this example, the applicant would still need to demonstrate that he or she satisfies the other qualifications of an information media representative, including that he or she represents an organization involved in the regular gathering, production, or dissemination of journalistic information that has a home office in another country.131 Similarly, a professional travel blogger traveling to the United States to obtain and produce materials on national parks in the United States could also qualify for I classification if all aspects of the definition of an information media representative are established, including the requirement that the media content generated will be journalistic information and that he or she represents an organization having an office in a foreign country and that is involved in the regular gathering, production, or dissemination of journalistic information. However, a blogger traveling to the United States to report on his or her own activities at a national park may not qualify for I status if the applicant does not represent an organization involved in the regular gathering, production, or dissemination of journalistic information and the media content is not primarily journalistic information. Individuals who are not professional bloggers, but maintain a personal blog and will produce content on their blog based on their personal experiences in the United States, such as providing information and reviews of their personal vacation, generally would not qualify for I classification, but may qualify for a B classification, depending on the circumstances. Likewise, a blogger promoting a line of products would not qualify for I status. These standards facilitate the travel of representatives of foreign information manual/volume-2-part-k-chapter-3 (last visited 4/ 13/2020) (stating that ‘‘[i]ncreasingly, because of the growing popularity of documentary-type biographies and similar nonfiction film productions, the distinction between commercial filmmaking for entertainment and genuine news gathering is less clear. For example, filmed biographies may be regarded as documentary filmmaking or as news gathering). 131 See 9 FAM 402.11–10, New Media—Blogging And Other Electronic Media Platforms, available at https://fam.state.gov/FAM/09FAM/ 09FAM040211.html (last visited Jan. 16, 2020). E:\FR\FM\25SEP2.SGM 25SEP2 60556 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 media. These proposed standards codify and clarify existing U.S. government practice and thus would not significantly alter the current guidance used by DHS officers adjudicating these cases or by DOS when determining whether an I visa should be issued. Rather, codifying these standards in the regulation would clarify how representatives of foreign press, radio, film or other journalistic information media qualify for the I classification. DHS does not anticipate that the changes proposed in this rule would represent a significant departure from current processing. ii. Evidence In order to be granted I classification, an alien would need to meet his or her burden of proof to establish eligibility for admission in that nonimmigrant category. DHS believes that evidence presented by such individuals to establish employment as a bona fide representative of foreign press, radio, film or other journalistic information media should be provided in a letter from the employing foreign media organization verifying the employment, the work to be performed, and the remuneration involved. This evidence would provide a standard basis for DHS to evaluate whether the applicant intends to comply with the I category and only engage in the regular gathering, production or dissemination via print, radio, television, internet distribution or other media of journalistic information and represents, as an employee or under contract, an organization with an office in a foreign country. For example, such a letter would be able to describe the content that the foreign information media representative is covering in the United States, which must be primarily journalistic information in nature, such as the reporting on recent or important events, investigative reporting, or producing educational materials, such as documentaries. Foreign media organizations would be able to describe how the content is primarily designed to provide information rather than entertainment, such as scripted or contrived situations, such as most ‘‘reality television’’ shows, which do not qualify an individual for admission under the I nonimmigrant category.132 Where an alien is self-employed or freelancing, the alien must provide an attestation that verifies the employment, 132 For more information about what qualifies as ‘journalistic information’ see 9 FAM 402.11–3 Definitions of ‘‘Information Media Representative’’ and ‘‘Journalistic Information’’, available at https:// fam.state.gov/FAM/09FAM/09FAM040211.html (last visited Jan. 14, 2020). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 establishes that he or she is a representative of a qualifying foreign media organization that meets the foreign home office requirement, and describes the remuneration and work to be performed. In order to maintain the home office in another country, a selfemployed applicant would need to demonstrate that he or she intends to depart the United States within a reasonable time frame consistent with the intended purpose of travel. Like the letter from the employing foreign media organization, the attestation from the alien would help to ensure that the individual is engaging in qualifying activities, not activities primarily intended for personal fan engagement, or promotional or marketing purposes, which are unrelated to the regular gathering, production, or dissemination of journalistic information. See proposed 8 CFR 214.2(i)(2). iii. Admission Period and EOS DHS is proposing an admission period for I nonimmigrants of up to 240 days and another period of up to 240 days for an extension, based on the length of the activity. See proposed 8 CFR 214.2(i)(3) and (5). As I nonimmigrants who file a Form I–539 request with USCIS to request a change in information medium are currently allowed an automatic extension of employment authorization with the same employer while a Form I–539 application is pending for a period not to exceed 240 days, 8 CFR 274a.12(b)(20), DHS believes that it is appropriate to extend such period of time to other I nonimmigrant contexts. DHS seeks comments on whether this is an appropriate period of time and whether exceptions for I nonimmigrants covered by certain international agreements, including Section 11 of the United Nations Headquarters Agreement, should be added to the final rule. Aliens applying for an EOS currently file a Form I–539 with USCIS, with required fee and in accordance with form instructions, but DHS is using general terms in the proposed regulatory text when referencing the EOS application. DHS is using general terms, rather than referencing form names and numbers, in the regulatory text to provide flexibility for the future—if the form name or number changes, the Department would not need to engage in rulemaking to make the update. See proposed 8 CFR 214.2(i)(5). And, as with other applicants who file a Form I–539, under the proposed rule applicants would be required to submit biometrics. See proposed 8 CFR 214.2(i)(5). Specific guidance and any PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 changes to the filing procedure would be provided in the form instructions, which USCIS would post on its website, making it easily accessible to applicants. iv. Change in Information Medium or Employer DHS proposes to retain the requirement that aliens in I status may not change the information medium or the employer they will be working with until they receive permission from USCIS. See proposed 8 CFR 214.2(i)(4). This is the current requirement and DHS believes it is appropriate to continue ensuring DHS has an opportunity to review the requested changes and ensure the changes would constitute as qualifying activities under the I program. Aliens would request such permission by submitting the form designated by USCIS, in accordance with that form’s instructions, and with the required fee, including any biometrics required by 8 CFR 103.16, as appropriate. Aliens currently submit Form I–539, Application to Extend/ Change Nonimmigrant Status, for this purpose. As in other parts of the rule, the proposed regulation does not reference specific form names and numbers in the regulatory text to provide flexibility for the future in the event the form name or number changes. In all cases, applicants would be provided sufficient notice of the appropriate form on USCIS’ web page and in the form instructions. v. Proposed Changes to Treatment of I Nonimmigrants Travelling or Presenting a Passport From the Hong Kong Special Administrative Region (SAR) Earlier this year, DHS published a final rule (85 FR 27645, May 11, 2020) amending the I nonimmigrant provision in 8 CFR 214.2(i). The rule amended the regulations to achieve greater reciprocity in the treatment of certain foreign nationals admitted to the United States in I nonimmigrant status as bona fide representatives of foreign information media who are foreign nationals travelling on a passport issued by the PRC, with the exception of Hong Kong Special Administrative Region (SAR) and Macau SAR passport holders. Under the rule, DHS has begun to admit aliens in I nonimmigrant status or otherwise grant I nonimmigrant status to aliens only for the period necessary to accomplish the authorized purpose of their stay in the United States, not to exceed 90 days. The rule also allows such visitors to apply for extensions of stay. Since the effective date of this rulemaking involving I nonimmigrants from the PRC, the National People’s Congress of China announced in late E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules May its intention to unilaterally and arbitrarily impose national security legislation on Hong Kong.133 Accordingly, the President, under the authority vested to him by the Constitution and applicable laws of the United States, including, among others, section 202 of the United States-Hong Kong Policy Act of 1992 (22 U.S.C. 5722), has determined that the Special Administrative Region of Hong Kong is no longer sufficiently autonomous to justify differential treatment in relation to the People’s Republic of China under relevant U.S. laws, and issued an Executive Order that, among others things, directed agencies to begin the process of eliminating policy exemptions that give Hong Kong differential treatment in relation to PRC. In light of this Executive Order, DHS is proposing to amend its regulations to eliminate differential treatment of I aliens who present, or are traveling on, passports from the Hong Kong SAR, and grant these aliens a period of stay necessary to accomplish the authorized purpose of their I status, not to exceed 90 days. The rule also proposes to allow these I aliens to apply for extensions of stay, not to exceed 90 days. In addition, aliens in I nonimmigrant status presenting passports issued by the Hong Kong SAR who are properly maintaining their status on the [FINAL RULE EFFECTIVE DATE] with admission for D/S are authorized to remain in the United States in I nonimmigrant status for a period necessary to complete their activity, not to exceed [DATE 90 DAYS AFTER EFFECTIVE DATE OF FINAL RULE]. I nonimmigrants who seek to remain in the United States longer than the automatic extension period provided would be required to file an extension of stay request with USCIS. These proposed changes are in line with the current requirements for I nonimmigrants who are traveling on, or have been issued a passport, by the PRC, which were enacted to achieve greater reciprocity between the United States and the PRC. G. Requirements for Admission, Extension, and Maintenance of Status of J Exchange Visitors nonimmigrants. Under proposed 8 CFR 214.2(j)(1), J exchange visitors would be able to receive a period of admission not to exceed the program end date as stated on the Form DS–2019, up to a period of 4 years, unless otherwise limited to a shorter period under proposed section 8 CFR 214.2(j)(6). Currently, the permissible initial time periods for the J programs (as opposed to the periods of admission) are as follows, though further extensions are possible with DOS approval for all categories: • Professors and research scholars: The length of program, not to exceed 5 years. See 22 CFR 62.20(i)(1). • Short-term scholars: The length of program, not to exceed 6 months. See 22 CFR 62.21(g). • Trainees and interns: General trainees may be granted 18 months; trainees in the field of agriculture, hospitality and tourism may be granted 12 months, and interns may be granted 12 months. See 22 CFR 62.22(k). • College and university students: The length of time necessary to complete the goals and objectives of the training. See 22 CFR 62.23(f)(4). For undergraduate and pre-doctoral training, not to exceed 18 months, and for post-doctoral training, not to exceed a total of 36 months. 22 CFR 62.23(f)(4). Students enrolled in a degree program do not have a definite admission period but must comply with duration of participation requirements at 22 CFR 62.23(h).134 If enrolled in a non-degree program, students may be granted up to 24 months. See 62.23(h)(2). • Student intern: Up to 12 months. See 22 CFR 62.23(h)(3) and (i). • Teachers: The length of time necessary to complete the program, not to exceed 3 years, unless a specific extension of 1 or 2 years is authorized by DOS. See 22 CFR 62.24(j). • Secondary school students: Not more than two academic semesters (or quarter equivalency). See 22 CFR 62.25(c)(2). • Specialists: The length of time necessary to complete the program, not to exceed 1 year. See 22 CFR 62.26(i). • Alien physicians: Limited to 7 years, unless the alien physician has demonstrated to the satisfaction of the Secretary of State that the country to khammond on DSKJM1Z7X2PROD with PROPOSALS2 i. Admission Period and Period of Stay 1. Principal Applicants The proposed revisions to the J regulations at 8 CFR closely align with the proposed changes for F 133 See the President’s Executive Order on Hong Kong Normalization, July 14, 2020, See https:// www.whitehouse.gov/presidential-actions/ presidents-executive-order-hong-kongnormalization/ (last visited July 21, 2020). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 134 A student who is in a degree program may be authorized to participate in the Exchange Visitor Program as long as he or she is either: (i) Studying at the post-secondary accredited academic institution listed on his or her Form DS–2019 and: (A) Pursuing a full course of study as set forth in paragraph (e) of this section, and (B) Maintaining satisfactory advancement towards the completion of the student’s academic program; or (ii) Participating in an authorized academic training program as permitted in paragraph (f) of this section. 22 CFR 62.23(h). PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 60557 which the alien physician will return at the end of additional specialty education or training has an exceptional need for an individual with such additional qualification. See 22 CFR 62.27(e). • International visitors: The length of time necessary to complete the program, not to exceed 1 year. See 22 CFR 62.28(g). • Government visitors: The length of time necessary to complete the program, not to exceed 18 months. See 22 CFR 62.29(h). • Camp counselors: 4 months. See 22 CFR 62.30(h)(2). • Au pairs: Not more than 1 year. See 22 CFR 62.31(c)(1). • Summer work travel: Up to 4 months. See 22 CFR 62.32(c). As with the F category, many J exchange visitors are admitted to participate in programs shorter than 4 years. Some J exchange visitors, like most F nonimmigrants, enter as postsecondary students. Similar to the F–1 Ph.D. student, some J nonimmigrants, like physicians, may need to stay longer than a 4-year period to complete their J program. However, many categories of J nonimmigrants would be covered by the same 4-year period proposed for F nonimmigrants. As such, it makes sense for DHS to treat these similarly situated nonimmigrants in a consistent manner by providing them with the same proposed, maximum admission period. See proposed 8 CFR 214.2(j)(1)(ii)(A). This would help ensure compliance by providing consistency between the J program and the F program, which have programmatic similarities. DHS proposes to retain the 30-day period that J nonimmigrants are provided before the report date or start of the approved program listed on the DS–2019 and the 30-day period at the end of the program. As DHS expects these nonimmigrants to use the 30-day period of time after the program ends to prepare for departure, the Department proposes to revise the language currently in 8 CFR 214.2(j)(1)(ii) that reads, ‘‘period of 30 days for the purposes of travel or for the period designated by the Commissioner. . .,’’ to instead read ‘‘a period of 30 days at the end of the program for the purposes of departure or to otherwise maintain status.’’ See proposed 8 CFR 214.2(j)(1)(ii)(C). DHS believes that the proposed language more accurately reflects the purpose of the period at the end of the program and accounts for other ways J exchange visitors may maintain status during this period, such as by filing an EOS or change of status application. E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 60558 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules Similar to the limitations proposed in 8 CFR 214.2(f)(20), the factors proposed in section (j)(6) focus on fraud and national security concerns. The factors DHS identified for limiting initial admission to a maximum of 2 years are: • Certain countries. Like F nonimmigrants, exchange visitors who were born in or are citizens of countries listed in the State Sponsor of Terrorism List. DHS would publish a notice in the Federal Register listing the countries whose nationals are subject to a 2-year maximum period of stay in J–1 status. Changes to the list would be made by issuance of a new Federal Register Notice. As the State Sponsor of Terrorism List are countries determined by the Secretary of State to have repeatedly provided support for acts of international terrorism, DHS believes it is appropriate to apply additional scrutiny to those who were born in these countries or are citizens of these countries who are temporarily in the United States to ensure that these aliens are complying with the terms of their admission and that they do not pose risks to the national security of the United States. • Countries with high overstay rates. Like F nonimmigrants, exchange visitors who are citizens of countries with a nonimmigrant student and exchange visitor total overstay rate greater than 10 percent according to the most recent DHS Entry/Exit Overstay report.135 The DHS Entry/Exit Overstay report compiles overstay rates for different classifications. It provides overstay rates per country for F, M, and J nonimmigrants together, rather than a separate overstay rate by classification, per country. Given the overlap between the F and J nonimmigrant classifications, utilizing the data for both exchange visitors and students to establish overstay rates is useful in that it may deter aliens who may attempt to seek admission in one status rather than the other in order to obtain a lengthier period of admission. DHS would publish a notice in the Federal Register listing the countries whose citizens are subject to a 2-year maximum period of stay in J–1 status. Changes to the list would be made by issuance of a new Federal Register Notice. Placing restrictions on citizens of countries with high overstay rates, consistent with the percent described by the Administration as a ‘high’ overstay rate for the purpose of enabling DHS and DOS to ‘‘immediately begin taking all 135 The overstay report for 2018 can be found at https://www.dhs.gov/sites/default/files/ publications/19_0417_fy18-entry-and-exit-overstayreport.pdf, see Table 4, Column 6. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 appropriate actions that are within the scope of their respective authorities to reduce overstay rates for all classes of nonimmigrant visas,’’ 136 could encourage future compliance by incentivizing timely departures so that a country that exceeds the threshold might be removed from the list of high overstay rates on the DHS Entry/Exit report. The restriction also would permit DHS to have more frequent scrutiny of individuals from countries that present more risk, such that the agency may sooner ascertain whether an alien has violated their status. • U.S. national interest. DHS proposes to include a factor to limit the maximum period of admission to 2 years if it serves the U.S. national interest. As in the F program, this provision would provide the Secretary of Homeland Security and Secretary of State the requisite flexibility to identify potential risks of fraud and abuse to the United States’ immigration programs and risks to national security that do not fit precisely within the other named categories. If the Department determines that certain technical fields pose a national security risk, more frequent vetting of the exchange visitors may serve in the national interest to mitigate the threats. If DHS determines that certain circumstances would be in the U.S. national interest to limit admission to a 2-year maximum period, then it would provide the public advance notice of such circumstance through publication of a Federal Register Notice. • E-Verify participation. While this proposed change would not impose a requirement that the program sponsor or host institution be enrolled in or be a participant in good standing in E-Verify, it would encourage those organizations that are not currently enrolled or in good standing to attain such status rather than potentially lose future exchange visitors. E-Verify participation helps to combat document fraud, identifies errors in certain Government records belonging to employees, and may be used by law enforcement agencies to aid in the prevention of identity theft.137 E-Verify participation 136 See Presidential Memorandum on Combating High Nonimmigrant Overstay Rates (April 22, 2019) available at https://www.whitehouse.gov/ presidential-actions/presidential-memorandumcombating-high-nonimmigrant-overstay-rates/ (last visited April 14, 2020). The Presidential Memorandum identified countries with a total overstay rate greater than 10 percent in the combined B–1 and B–2 nonimmigrant visa category as appropriate for additional engagement by the DOS, which ‘‘should identify conditions contributing to high overstay rates among nationals of those countries. . .’’ 137 E-Verify.gov website, How does E-Verify use my information?, https://www.e-verify.gov/faq/ PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 is also a fast and easy way for sponsors and host institutions to demonstrate their commitment to maintaining a legal workforce. Like the limiting factors for admission of F students, any one factor could trigger the designation of a maximum 2year period of stay. And, like F students, J exchange visitors who depart the United States or for any reason would need to file an EOS application become subject to all terms and conditions of admission, including the 2-year limitation. This would include cases where an exchange visitor is admitted for a 4-year period, but in the midst of their 4-year admission, a new Federal Register Notice is published, making the exchange visitor subject to the 2-year admission; even though the alien generally may remain in the United States for the remainder of the 4-year period without seeking an extension of stay, if they depart the United States or for any reason need to file an EOS application, then they will be subject to the 2-year maximum period of admission. See proposed 8 CFR 214.2(j)(6)(iii). The ultimate decision as to whether to admit the alien, and the maximum period of admission for such alien, would remain with the Secretary of Homeland Security, consistent with the Secretary’s statutory obligation to administer and enforce the nation’s immigration laws. See, e.g., INA 103(a), 235; see also proposed 8 CFR 214.2(j)(6). The first FRN listing the countries triggering the 2-year admission period, along with other determinations related to this provision,138 would be published contemporaneously with the final rule. Subsequent updates would be made as needed and would provide stakeholders with notice in advance of any change. 2. Dependents Consistent with the extension of stay eligibility requirements for the J–1 found at 8 CFR 214.1(c)(4), DHS proposes to codify the policy that extensions for spouses or children who are granted J–2 status based on their derivative relationship as a spouse or child of the principal J–1 nonimmigrant may not exceed the period of authorized admission of the principal J–1. The current regulations state that the initial admission of a spouse or child may not be for longer than the principal exchange visitor.139 That is, the authorized period of initial admission privacy/how-does-e-verify-use-my-information (last visited Apr.14, 2020). 138 This information is currently available at https://ope.ed.gov/dapip/#/home (last visited Jan. 26, 2020). 139 8 CFR 214.2(j)(1)(ii). E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules for J–2 dependents would be subject to the same requirements as the J–1 exchange visitor and may not exceed the period of authorized admission of the principal J–1 exchange visitor. See proposed 8 CFR 214.2(j)(1)(ii)(B). ii. EOS The shift from D/S to admission for a fixed time period would mean that J nonimmigrants wishing to remain in the United States beyond their authorized period of stay would need to file an EOS application with USCIS. Like other nonimmigrants applying for EOS, they would currently need to file a Form I– 539 in accordance with that form’s instructions, with the required fee, and including any biometrics or interview as required by 8 CFR 103.16. See proposed 8 CFR 214.2(j)(1)(iv)(A). J–1s seeking a program extension will continue to first request such an extension through the RO, as provided for under current regulations.140 If such a program extension is recommended by the RO, the J–1 must apply for an EOS with USCIS to remain in the U.S. beyond the status expiration date on their I–94. Dependent J–2 spouses and children seeking to accompany the J–1 exchange visitor during the additional period of admission would either need to be included on the primary applicant’s request for extension or file their own EOS applications on the form designated by USCIS, and may be required to provide biometrics consistent with 8 CFR 103.16. See proposed 8 CFR 214.2(j)(1)(iv)(D). As with other nonimmigrant categories, the period of stay for J–2 dependents cannot exceed the period of stay authorized for the principal J–1 exchange visitor. And, as with other nonimmigrant categories, if an EOS is denied, the aliens would need to immediately depart the United States once their authorized period of stay expires. khammond on DSKJM1Z7X2PROD with PROPOSALS2 iii. Employment and Pending EOS and Employment Authorization Applications Like I nonimmigrants, J–1 exchange visitors are authorized to engage in employment incident to status.141 This means that they are authorized to work per the terms of their program, and they 140 See 22 CFR 62.43, describing J–1 program extension procedures. 141 See 8 U.S.C. 1101(a)(15)(J) (including teaching, instructing, lecturing, and consulting among the permissible activities of nonimmigrants in the J category for participation in programs authorized by the Department of State); 8 CFR 214.2(j)(1)(v) (discussing employment authorization for J exchange visitors); 22 CFR 62.16 (stating that an exchange visitor program participant may receive compensation ‘‘when employment activities are part of the exchange visitor’s program’’). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 do not have to apply to USCIS for authorization to engage in employment. Upon timely filing of an EOS application, DHS proposes to allow the alien to continue engaging in activities consistent with the terms and conditions of the alien’s program, including any employment authorization, beginning on the day after the admission period expires, for up to 240 days. See 8 CFR 274a.12(b)(20). Such authorization would be subject to any conditions and limitations of the initial authorization. See proposed 8 CFR 214.2(j)(1)(vii). This policy is consistent with current practice and prevents J–1 exchange visitors from being penalized on account of USCIS processing times, allows the alien to participate in the program without interruption, and, as applicable, prevents disruption to U.S. institutions employing or otherwise relying on the alien. If the alien’s initial date of admission passes, DHS proposes to consider the alien’s Form I–94 unexpired when combined with a USCIS receipt notice indicating receipt of a timely filed EOS application and a valid, properly endorsed Form DS–2019 indicating his or her program’s end date. An EOS application would be considered timely filed if the receipt notice for the application of EOS is on or before the date the authorized stay expires. The extension of an alien’s authorized employment would terminate on the date of denial of an individual’s application for an EOS. See proposed 8 CFR 214.2(j)(1)(iv)(B). DHS believes that such provision would clarify how exchange visitors would demonstrate authorization to continue engaging in employment authorized pursuant to their program and better facilitate employer compliance with I–9 employment verification requirements. Unlike J–1 exchange visitors, J–2 spouses and minor children may only engage in employment with authorization by USCIS. See 8 CFR 214.2(j)(1)(v) as also provided for in proposed 8 CFR 214.2(j)(1)(vii)(C). DHS also proposes to retain the current restriction on the J–2 dependent’s income described in 8 CFR 214.2(j)(1)(v)(A); the J–2 nonimmigrant’s income may be used to support the family’s customary recreational and cultural activities and related travel, among other things, but not to support the J–1. See proposed 8 CFR 214.2(j)(1)(v)( ). If a J–2 dependent nonimmigrant’s requested period of employment authorization exceeds his or her current admission period, the J–2 dependent would need to file an EOS application, PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 60559 in addition to a new application for employment authorization, in the manner designated by USCIS, with the required fee and in accordance with form instructions. See proposed 8 CFR 214.2(j)(1)(v)( ). As noted above in the discussion concerning EOS applications for F nonimmigrants, DHS considered but declined to adopt a policy that would result in abandonment of the EOS application upon traveling outside the United States while the EOS is pending. A J–1 or J–2 alien who travels during the time the EOS is pending will not be considered to have abandoned the EOS application. See proposed 8 CFR 214.1(c)(6)(i). Finally, DHS proposes minor technical updates. First, DHS proposes to update outdated terms such as ‘‘Commissioner’’ and ‘‘Service’’ in 8 CFR 214.2(j)(1)(vi), replacing them with USCIS. Second, in 8 CFR 214.2(j)(1)(vi) DHS proposes to strike the reference to duration of status and replace it with ‘Extension of J–1 stay and grant of employment authorization for aliens who are the beneficiaries of a capsubject H–1B petition’ which is consistent to the terminology proposed in 8 CFR 214.2(f)(5)(vi). Third, because proposed 8 CFR 214.2(j)(1)(vii) is being revised to describe J nonimmigrants with pending extension of stay applications and their employment authorization, it is necessary to revise and reassign current 8 CFR 214.2(j)(1)(vii) and (viii) to proposed 8 CFR 214.2(j)(1)(viii) and (ix) respectively. Fourth, DHS proposes conforming amendments to the provision which requires exchange visitors to report legal changes to their name and any changes in their address, replacing the term ‘Service’ with ‘USCIS’ and clarifying the number of days during which changes need to be reported by revising from 10 days to 10 ‘calendar’ days for exchange visitors to report changes in their names and addresses and from 21 days to 10 business days for the RO to update SEVIS, in order to conform with existing DOS regulations.142 See proposed 8 CFR 214.2(j)(1)(ix). This change is proposed because the differing number of days for ROs to report changes between DHS and DOS regulations may cause confusion given that the time frames are both regarding the requirement for ROs to 142 22 CFR 62.10(d)(3) clarifies that the J–1 exchange visitor must inform the RO or ARO of address changes within ‘‘10 calendar days’’ of the change, and 22 CFR 62.10(d)(4) states that the reporting window for ROs or AROs to update SEVIS is ‘‘10 business days’’ from receiving the J–1 exchange visitor’s address change notification from the J–1 exchange visitor. E:\FR\FM\25SEP2.SGM 25SEP2 60560 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 update changes in SEVIS, and this change provides for a common timeframe. In that same provision, DHS proposes to strike the sentence which references non-SEVIS programs, as SEVIS enrollment is now a mandatory requirement. Id. Finally, DHS proposes changes to the regulatory provisions to refer to J nonimmigrants as ‘‘exchange visitors,’’ to promote consistency with DOS regulations. H. Change of Status DHS is proposing to add two provisions to 8 CFR part 248, which governs changes of status. First, DHS is proposing to clarify that aliens who were granted a change to F or J status before the effective date of the final rule, and are applying for admission as an F or J after the final rule’s effective date may be admitted up to the program end date as noted on the Form I–20 or DS– 2019 that accompanied the change of status application that was approved prior to the alien’s departure, not to exceed 4 years, unless they are subject to a 2-year admission proposed in 8 CFR 214.2(f)(20) or (j)(6), plus a period of 30 days following their program end date, to prepare for departure or to otherwise seek to obtain lawful authorization to remain in the United States. See proposed 8 CFR 248.1(e). That is, CBP may admit these aliens into the United States up to the program end date, on the Form I–20 or DS–2019 that accompanied the approved change of status prior to the alien’s departure, plus an additional 30 days, thus ensuring that they do not get more time than allocated by their program end date, since these Fs and Js would have received an admission period for D/S on the I–94 that accompanied the change of status approval. Second, DHS is proposing to codify long-standing policy that, when an alien timely files an application to change to another nonimmigrant status, including F or J status, but departs the United States while the application is pending, USCIS will consider the application abandoned.143 Under INA 248, DHS may authorize a change of status to a nonimmigrant who, among other things, continues to maintain his or her status. Thus, pursuant to a policy that has been in place for decades, the change of status application of an alien who travels outside of the United States during the pendency of his or her request for a change of status is deemed 143 See Letter, Bednarz, Chief, NIV Branch, Adjudications CO 238–C (Oct. 29, 1993), reprinted in 70 No. 46 Interpreter Releases 1604, 1626 (Dec. 6, 1993); INS Memorandum, HQ 70/6.2.9, Travel After Filing a Request for a Change of Nonimmigrant Status, (June 18, 2001). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 abandoned.144 See proposed 8 CFR 248.1(g). Note, however, if there is an underlying petition filed along with the change of status, that petition may still be approved, but the alien generally would have to obtain the necessary visa at a U.S. Embassy or Consulate abroad before applying for admission to the United States in the new nonimmigrant classification. Additionally, DHS proposes minor technical edits: Replacing the words ‘‘A district director’’ in newly re-designated paragraph (g) with ‘‘USCIS’’; replacing ‘‘shall’’ in newly re-designated paragraph (g) with ‘‘will’’; and replacing all instances of ‘‘shall’’ with ‘‘will’’ in newly re-designated paragraph (h). I. Classes of Aliens Authorized To Accept Employment DHS is proposing the following updates to regulations pertaining to employment authorization: First, as discussed above, DHS proposes to change 8 CFR 274a.12(b)(6)(i) to conform with proposed revisions in 8 CFR 214.2(f)(9)(i), which as discussed above, would terminate on-campus employment as of the alien’s fixed date of admission as noted on his or her Form I–94. If the alien has timely applied for an extension of stay, however, pursuant to proposed 8 CFR 214.2(f)(5)(vii), the current on-campus and severe economic hardship employment authorization of such an alien may be automatically extended for up to 180 days, or until adjudicated by USCIS, whichever is earlier, as described in that section. See proposed 8 CFR 274a.12(b)(6)(i). In cases where employment is authorized pursuant to severe economic hardship resulting from emergent circumstances under 8 CFR 214.2(f)(5)(v), the validity period of the employment authorization is provided by notice in the Federal Register and indicated by a Certificate of Eligibility for Nonimmigrant (F–1/M– 1) Students, Form I–20 or successor form, endorsed by the Designated School Official recommending such an extension. See proposed 8 CFR 274a.12(b)(6)(i). Second, as discussed above, DHS proposes to clarify that CPT terminates on the alien’s fixed date of admission as noted on their Form I–94. An F–1 alien whose fixed date of admission noted on their Form I–94 has expired may not engage in CPT until USCIS approves an alien’s EOS request. See proposed 8 CFR 274a.12(b)(6)(iii). Third, as discussed above, DHS proposes to strike the reference to D/S in 8 CFR 274a.12(b)(6)(v) and update the 144 Id. PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 language to be consistent with proposed cap-gap provisions at 8 CFR 214.2(f)(5)(vi). Fourth, as discussed above, in proposed 8 CFR 274a.12(b)(10), DHS proposes to cross-reference proposed language in 8 CFR 214.2(i) for I nonimmigrants, which clarifies that limitations currently in the provision (an alien in this status may be employed only for the sponsoring foreign news agency or bureau) allow for freelance and self-employment situations where the I nonimmigrant may not have a ‘‘sponsoring’’ foreign news agency or bureau, and instead would need to show, among other requirements indicated in proposed 8 CFR 214.2(i), that they are working for a qualifying foreign media organization. V. Statutory and Regulatory Requirements DHS developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. The below sections summarize our analyses based on a number of these statutes or executive orders. A. Executive Orders 12866, 13563, and 13771: Regulatory Review Executive Orders 12866 (‘‘Regulatory Planning and Review’’) and 13563 (‘‘Improving Regulation and Regulatory Review’’) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules and promoting flexibility. Executive Order 13771 (‘‘Reducing Regulation and Controlling Regulatory Costs’’) directs agencies to reduce regulation and control regulatory costs and provides that ‘‘for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.’’ This rule has been designated a ‘‘significant regulatory action’’ that is economically significant, under section 3(f)(1) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget. 1. Summary Currently, aliens in the F (academic student), J (exchange visitor), and I E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules (representatives of foreign information media) categories are admitted to the United States under the duration of status framework. However, this framework poses a challenge to the Department’s ability to efficiently monitor and oversee these nonimmigrants, as the duration of status framework does not require immigration officers to assess whether these nonimmigrants are complying with the terms and conditions of their stay, or whether they present a national security concern, unless some triggering event (such as an encounter in an enforcement setting, or a request for a benefit from USCIS) leads to a review of the nonimmigrant’s compliance. To address these vulnerabilities, DHS proposes to replace duration of status (D/S) with an admission for a fixed time period. Admitting individuals in the F, J, and I categories for a fixed period of time would require all F, J, and I aliens who wish to remain in the United States beyond their specific authorized admission period to apply for authorization to extend their stay directly with USCIS or CBP. This change would impose incremental costs on F, J, and I aliens, but would in turn protect the integrity of the F, J and I programs by having immigration officers evaluate and assess the appropriate length of stay for these nonimmigrants. The period of analysis for the rule covers 10 years and assumes the proposed rule would go into effect in 60561 2020. Therefore, the analysis period goes from 2020 through 2029. This analysis estimates the annualized value of future costs using two discount rates: 3 percent and 7 percent. In Circular A– 4, OMB recommends that a 3 percent discount rate be used when a regulation affects private consumption, and a 7 percent discount rate be used in evaluating a regulation that will mainly displace or alter the use of capital in the private sector. The discount rate accounts for how costs that occur sooner are more valuable. As shown in Table 1, the NPRM would have an annualized cost ranging from $229.9 million to $237.8 million (with 3 and 7 percent discount rates, respectively). TABLE 1—OMB A–4 ACCOUNTING STATEMENT (2018$) Category 7 Percent discount rate 3 Percent discount rate BENEFITS: Annualized Monetized $millions/year ..................... Annualized Quantified ............................................ N/A ..................................... N/A ..................................... N/A ..................................... N/A ..................................... Qualitative ............................................................... COSTS: Annualized Monetized $millions/year ..................... Annualized quantified ............................................. khammond on DSKJM1Z7X2PROD with PROPOSALS2 Qualitative ............................................................... TRANSFERS: Annualized Monetized $millions/year ..................... Annualized quantified ............................................. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 PO 00000 Source citation (RIA, preamble, etc.) N/A. N/A. • Would enhance DHS’s ability to enforce the unlawful presence provisions of the INA at conclusion of their fixed 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 nonimmigrants 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. Preamble, RIA Section VI.A.4. $237.8 ................................ N/A ..................................... $229.9 ................................ N/A ..................................... RIA Section VI.A.4. N/A. • Burden associated with government requests for additional information from or in-person interviews with nonimmigrants. • Potential reduction in enrollment of nonimmigrant students and exchange visitors. • CBP and USCIS costs for proposed rule familiarization and training and additional steps at ports of entry to assess fixed period of time for admission. • Costs associated with EOS requests from F–1 nonimmigrants attending schools that are not enrolled in EVerify. • Potential burden to schools/program sponsors and DHS to update batch processing systems that facilitate exchange of data between DSOs/ROs and SEVIS. • Potential costs to F–1 students and schools from limitations on changes in education levels. • Potential burden on F–1 English language training (ESL) program students who could no longer pursue an ESL course of study beyond 24 months. RIA Section V.A.4. N/A. N/A. N/A. N/A. Frm 00037 Fmt 4701 Sfmt 4702 E:\FR\FM\25SEP2.SGM 25SEP2 60562 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules TABLE 1—OMB A–4 ACCOUNTING STATEMENT (2018$)—Continued 7 Percent discount rate Category Qualitative ............................................................... Potential reduction in fees collected by SEVP and DOS to cover the cost of the programs due to a potential reduction in international enrollment. Category Effects State, Local, and/or Tribal Government ........................ Small business .............................................................. khammond on DSKJM1Z7X2PROD with PROPOSALS2 Wages ............................................................................ Growth ........................................................................... 2. Background and Purpose of the Proposed Rule Unlike aliens in most nonimmigrant categories who are admitted until a specific departure date, F, J, and I nonimmigrants are admitted into the United States for a period of time necessary to engage in activities authorized under their respective [visa] classifications. This period of time is referred to as ‘‘duration of status’’ (D/S) and, under the D/S framework, nonimmigrants do not receive a fixed period of admission. Since the introduction of D/S, the number of F, J, and I nonimmigrants admitted into the United States has significantly increased. Admission for D/S, in general, does not give immigration officers enough opportunities to directly verify that aliens granted such nonimmigrant status are engaging only in those activities authorized by their respective classifications while they are in the United States. In turn, this has undermined DHS’s ability to effectively enforce the statutory inadmissibility grounds related to unlawful presence and has created incentives for fraud and abuse. Additionally, the D/S framework creates opportunities for foreign adversaries to exploit these programs and undermine U.S. national security, in part due to the reduced opportunities for direct vetting of foreign academic students by immigration officers. An open education environment in the United States offers enormous benefits, but it also places research universities and the nation at risk for economic, academic, or military espionage by foreign students and exchange visitors. DHS believes that replacing admissions for D/S for F–1 students and J–1 exchange visitors with admission for a fixed time period would help mitigate these national security risks, by ensuring an immigration official directly VerDate Sep<11>2014 18:49 Sep 24, 2020 3 Percent discount rate Jkt 250001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 RIA V.A.4. Source Citation (RIA, preamble, etc.) Some public schools would incur incremental costs to comply with the proposed rule and a potential decline in international enrollment. Some small businesses would incur incremental costs to comply with the proposed rule. None. None. and periodically vets their applications for extension of stay and, in doing so, confirm they are engaged only in activities consistent with their student or exchange visitor status. Under the proposed changes, DHS would more frequently collect biometrics and other information, enhancing the Government’s oversight and monitoring of these aliens. To address these concerns, the proposed rule would replace the D/S framework for F, J, and I nonimmigrants with a framework that authorizes an admission period with a specific date upon which an authorized stay ends. Nonimmigrants who would like to stay in the United States beyond their fixed date of admission would need to apply directly with DHS for an extension of stay. As the admission for a fixed time period of authorized stay is already in place for most other nonimmigrant categories, this change brings F, J and I nonimmigrants in line with most other classifications. Providing F, J and I nonimmigrants a fixed time period of authorized stay would require them to apply to extend their stay, change their nonimmigrant status, or otherwise seek to obtain authorization to remain in the United States (e.g., by filing an application for adjustment of status) prior to the end of this specific admission period similar to most other nonimmigrants. The proposed rule would ensure an effective mechanism for the Department to periodically and directly assess whether these nonimmigrants are complying with the conditions of their classifications and U.S. immigration laws, as well as to obtain timely and accurate information about the activities they have engaged in and plan to engage in during their temporary stay in the United States. In addition, as F, J, and I nonimmigrants would be admitted for a fixed period of admission under the Source citation (RIA, preamble, etc.) RIA V.A.4. Initial Regulatory Flexibility Analysis. N/A. N/A. proposed rule, they would generally begin to accrue unlawful presence following the expiration of their authorized period of admission, as noted on the Form I–94, and could potentially become inadmissible based on that accrual of unlawful presence under section 212(a)(9)(B) and (C), 8 U.S.C. 1182(a)(9)(B) and (C), upon departing the United States. Those grounds of inadmissibility have important and far-reaching implications on an alien’s future eligibility for a nonimmigrant visa, admission to the United States, an immigrant visa, or adjustment of status to that of a lawful permanent resident, and therefore may deter F, J, and I nonimmigrants from failing to maintain status or engaging in fraud and abuse and strengthen the integrity of these nonimmigrant. classifications. 3. Affected Population The proposed rule would primarily affect F, J, and I nonimmigrants and their dependents by requiring some nonimmigrants in these categories to file an EOS application to extend their stay beyond their fixed period of admission. F nonimmigrants are individuals enrolled as bona fide students at SEVPcertified schools, J nonimmigrants are individuals participating in work and study-based exchange visitor programs, and I nonimmigrants are foreign information media representatives. In the sections below, DHS describes the data and methods used to (1) estimate the annual population size for each analyzed visa classification, (2) characterize these annual populations with respect to the need to file an EOS request, and (3) develop projections for the annual number of EOS requests for the evaluation period from 2020 to 2029. These analytical steps have been implemented using the R Project for Statistical Computing, an open-source E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules analytical software platform.145 The proposed rule’s docket provides the SQL code used to query SEVIS and ADIS and the R code used to implement the logic for this analysis. Estimating the Affected Population To identify potentially affected nonimmigrants, DHS used data from several agencies. Data for F and J nonimmigrants were extracted from the Student and Exchange Visitor Information System (SEVIS), including data on student participation in OPT, and J exchange visitor program sponsors. The Student and Exchange Visitor Program (SEVP) oversees schools certified to enroll F and M nonimmigrant students and their dependents. The Department of State (DOS) manages Exchange Visitor Programs for nonimmigrant exchange visitors in the J classification, and their dependents. Both SEVP and DOS use SEVIS to track and monitor schools; exchange visitor programs; and F, M, and J nonimmigrants while they are temporarily in the United States.146 Data on I nonimmigrants were extracted from the CBP Arrival and Departure Information System (ADIS). ADIS consolidates entry, exit, and admission status information from DHS components, DOS, and the Canada Border Services Agency. ADIS contains biographic information, biometric indicators, and encounter data.147 DHS used nonimmigrant student and exchange visitor program sponsor data from SEVIS and ADIS for fiscal year (FY) 2016, FY 2017, and FY 2018 to estimate the potentially affected population. For each year of data, DHS estimated the total number of nonimmigrants in each category and the total number of individuals who would have to file an EOS in that year if the rule were in effect. Next, DHS used an average of these 3 years as a best estimate of the affected population. To estimate the total population of nonimmigrants in each year of the analysis, DHS took steps to remove incomplete and incorrect data entries from the SEVIS and ADIS data. For F and J nonimmigrants, DHS first eliminated records that were missing data critical to the analysis such as data entries without start and end dates for the individual’s current program or entries that had a program start date that occurred after the program end date as this indicates that the start and end dates were entered improperly. In each fiscal year of data, this resulted in elimination of approximately 4 percent of unique SEVIS entries for F nonimmigrants but no appreciable data loss for J nonimmigrants. In order to only select individuals who were enrolled during the year of analysis, DHS selected entries that had a program end date that occurred on or after the beginning of the year of analysis,148 and had a program start date that occurred on or before the end of the year of analysis.149 DHS also took steps to (1) 60563 remove outliers in the data by removing data entries with an end date beyond 2050, (2) identify unique records by removing duplicate entries, and (3) retain a single entry for nonimmigrants with multiple records by keeping either the entry linked to a currently active entry, or if there were no active entries, keeping the entry with the latest end date. In total, DHS reduced the number of entries by approximately 240,000 records for each fiscal year of data for the F nonimmigrants and approximately 4,000 records for each fiscal year of data for the J nonimmigrants. This data reduction has been largely driven by elimination of multiple entries associated with a unique SEVIS identifier, rather than by elimination of incomplete entries.150 Table 2 shows the estimated total number of F, J, and I nonimmigrants for each fiscal year from 2016 to 2018, as well as the 3-year average. The F estimates include F–1 and F–2 nonimmigrants, J estimates include J–1 and J–2 nonimmigrants, and I estimates include both principal I and dependent I nonimmigrants as there are no multiple categories of I visas. Over the 3-year period, there were approximately 1.7 million F nonimmigrants, 607,000 J nonimmigrants, and 35,000 I nonimmigrants active per year. Overall, approximately 2.3 million persons participated annually in the F, J, and I 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 ....................................................................................................................... J ....................................................................................................................... I ........................................................................................................................ 1,733,416 590,992 36,675 1,708,012 627,752 36,709 1,674,818 603,292 32,771 1,705,415 607,345 35,385 Total .......................................................................................................... 2,361,083 2,372,473 2,310,881 2,348,145 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Estimates derived from SEVIS and ADIS data. Each year, only a subset of the total nonimmigrant F, J, and I population would be affected by the proposed rule provisions. DHS applied the criteria contained within the proposed rule to estimate the subset of nonimmigrants that would be required to extend their authorized period of admission in each year of the analysis in order to continue the duration of studies observed in the fiscal year 2016–2018 SEVIS data. These 145 https://www.r-project.org/about.html. 146 More information on SEVIS can be found at https://www.ice.gov/sevis/overview. 147 More information on ADIS can be found at https://www.dhs.gov/publication/arrival-anddeparture-information-system. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 criteria vary across the nonimmigrant categories. Estimating EOS Requests for F Nonimmigrants F–1 nonimmigrants are bona fide students who seek to enter the United States temporarily and solely for the purpose of pursuing a full course of study at an academic or language training school certified by SEVP. F–2 148 In 2016, this cutoff is 10/01/2015; in 2017, it is 10/01/2016; in 2018 it is 10/01/2017. 149 In 2016, this cutoff is 9/30/2016; in 2017, it is 9/30/2017; in 2018 it is 9/30/2018. 150 There are approximately 1.15 entries per unique SEVIS identifier for F nonimmigrants and PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 nonimmigrants are their dependents. F nonimmigrants include, but are not limited to, individuals enrolled in language training, bachelor’s degrees, and those engaged in OPT. This rule proposes a fixed period of admission of up to 2 or 4 years for F nonimmigrants, depending on whether a nonimmigrant presents heightened concerns related to fraud, abuse, and national security. The proposed rule 1.01 entries per unique SEVIS identifier for J nonimmigrants. E:\FR\FM\25SEP2.SGM 25SEP2 60564 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 includes the following criteria that could result in an EOS request: • Program Length. The nonimmigrant’s program length exceeds 4 years; 151 • Certain Countries. The nonimmigrant was born in or is a citizen of a country on the State Sponsors of Terrorism list, or is a citizen of a country with a student and exchange visitor total overstay rate greater than 10 percent according to the most recent DHS Entry/Exit Overstay report; 152 • Other Factors of U.S. National Interest. The nonimmigrant is subject to other factors determined to be in the U.S. national interest, which may include but not be limited to circumstances where there may be national security concerns or risks of fraud and abuse. These factors may be incorporated into a Federal Register Notice (FRN) to limit a student’s period of stay to a 2-year maximum; • Accreditation. The nonimmigrant is enrolled at a post-secondary school that is not accredited by an accrediting body 151 DHS acknowledges that recent estimates of median time to bachelor’s degree completion in the United States published by the Department of Education’s National Center for Education Statistics (NCES) is 52 months. See U.S. Department of Education, National Center for Education Statistics, Status and Trends in the Education of Racial and Ethnic Groups 2018, available at https:// nces.ed.gov/programs/raceindicators/indicator_ red.asp. NCES statistics on all postsecondary students in the U.S. also show factors positively associated with completion of bachelor’s degree in under four years include financial dependent status and age of less than 23 years. The prevalence of U.S. citizens who are studying part-time in the NCES data indicates that the NCES data is not representative of the time to completion for students studying full time, including foreign students. See U.S. Department of Education, National Center for Education Statistics, Fast Facts, available at https://nces.ed.gov/fastfacts/ display.asp?id=569. A longitudinal study of students beginning their postsecondary studies in 2011–2012 shows 75% of students completing a full course-load in their freshman year alone finish within 4 years. See U.S. Department of Education, National Center for Education Statistics, Courses Taken, Credits Earned, and Time to Degree: A First Look at the Postsecondary Transcripts of 2011–12 Beginning Postsecondary Students, available at https://nces.ed.gov/pubs2020/2020501.pdf. DHS does not assert that all foreign students will complete their course of study on time and has analyzed and discussed SEVIS data that forms the basis of our estimated number of bona fide extension requests resulting from this proposed rule. 152 A list of State Sponsors of Terrorism can be found at https://www.state.gov/state-sponsors-ofterrorism/. The overstay report for 2018 can be found at https://www.dhs.gov/sites/default/files/ publications/19_0417_fy18-entry-and-exit-overstayreport.pdf, see Table 4, Column 6. The DHS 2017 Entry/Exit Overstay Report can be found at https:// www.dhs.gov/sites/default/files/publications/18_ 1009_S1_Entry-Exit-Overstay_Report.pdf, see Table 4, Column 6. The DHS 2016 Entry/Exit Overstay Report can be found at https://www.dhs.gov/sites/ default/files/publications/Entry%20and%20 Exit%20Overstay%20Report%2C%20Fiscal%20 Year%202016.pdf, see Table 4, Column 6. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 recognized by the Secretary of Education; • Extended Period of Admission. The nonimmigrant makes a change to his or her program that affects the program end date and requires an extension of stay, such as a change from OPT to a STEM OPT extension or a change in educational level; and • E-Verify Enrollment. The nonimmigrant’s school is not enrolled in E-Verify or is not a participant in good standing in E-Verify as determined by USCIS. In this analysis, DHS does not present the number of individuals meeting each limitation criterion, as some individuals may meet multiple criteria. The affected population estimates reflect the overall effect of all of the NPRM’s limitations, rather than the marginal effects of each limitation. To estimate EOS requests, DHS analyzed nonimmigrant data to identify individuals who would be subject to the limitation criteria in the year of analysis using the following steps: 1. Program Length. This analysis assumes that individuals would require an EOS in the year of analysis if they had a program duration longer than 4 years, were not in the final year of their program, and were in a year of their program that was a multiple of four (e.g., 4, 8, 12). 2. Certain Countries. The rule proposes to limit the fixed time period of admission of up to 2 years for F nonimmigrants who were born in or are citizens of countries listed on the State Sponsors of Terrorism List or who are citizens of countries with a student and exchange visitor total overstay rate greater than 10 percent according to the most recent DHS Entry/Exit Overstay report.153 F nonimmigrants subject to this limit would be eligible for an EOS of up to 2 years. To estimate the number of individuals meeting these criteria and needing an EOS in the year of analysis, DHS identified individuals who were born in or are citizens of countries on 153 A list of State Sponsors of Terror can be found at https://www.state.gov/state-sponsors-ofterrorism/. The overstay report for 2019 can be found at https://www.dhs.gov/sites/default/files/ publications/20_0513_fy19-entry-and-exit-overstayreport.pdf, see Table 4, Column 6. The overstay report for 2018 can be found at https:// www.dhs.gov/sites/default/files/publications/19_ 0417_fy18-entry-and-exit-overstay-report.pdf, see Table 4, Column 6. The 2017 Overstay Report can be found at https://www.dhs.gov/sites/default/files/ publications/18_1009_S1_Entry-Exit-Overstay_ Report.pdf, see Table 4, Column 6. The 2016 Overstay Report can be found at https:// www.dhs.gov/sites/default/files/publications/ Entry%20and%20Exit%20Overstay%20 Report%2C%20Fiscal%20Year%202016.pdf, see Table 4, Column 6. The analysis uses 87 countries with overstay rate greater than 10 percent in at least one of the analysis years (i.e., 2016, 2017, or 2018). PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 the State Sponsors of Terrorism list or who are citizens of countries with a student and exchange visitor total overstay rate greater than 10 percent according to the most recent DHS Entry/ Exit Overstay report, not in the last year of their program, in a year of their program that was a multiple of two (e.g., year 2, 4, 6) and whose program duration is greater than 2 years. 3. Other Factors of U.S. National Interest. Although the proposed rule does not explicitly list other factors that may serve the U.S. national interest, the analysis uses enrollment in the nuclear physics or nuclear engineering courses as examples of courses that could pose a risk to U.S. national security to estimate the potential impacts of this proposed requirement. The analysis assumes that nonimmigrants would require an EOS in the year of analysis if they were enrolled in these courses of study, not in the last year of their program, in a year of their program that was a multiple of two (e.g., year 2, 4, 6), and had a program duration of greater than 2 years. 4. Accreditation. Similarly, the analysis assumes that nonimmigrants would require an EOS if they were enrolled at a post-secondary school not accredited by an accrediting body recognized by ED, not in the last year of their program, in a year of their program that was a multiple of two (e.g., year 2, 4, 6), and had a program duration of greater than 2 years. 5. Extended Period of Admission. DHS identified nonimmigrants within each fiscal year who needed to change their authorized period of admission in the year of analysis. Individuals switching from an OPT program to a Science, Technology, Engineering, or Math (STEM) OPT extension program, individuals requesting additional time to complete their program of study, and individuals changing from one educational level to another, among others, were included. Individuals changing majors, transferring schools, enrolling in pre-completion OPT, or making other changes to their course of study that would not affect their program end date were not considered to require an EOS in the year of analysis if they did not meet any other limiting criteria that would require them to extend. 6. E-Verify Enrollment. To estimate the number of students affected by this proposed provision, DHS needed to identify nonimmigrants that were enrolled at a post-secondary school not enrolled in E-Verify or not a participant in good standing in E-Verify, not in the last year of their program, in a year of their program that was a multiple of two E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules (e.g., year 2, 4, 6), and had a program duration of greater than 2 years. DHS worked with both nonimmigrant data and employer data, attempting to match E-Verify enrollment with students’ schools. However, because the datasets did not have a common, unique key, DHS was unable to comprehensively merge the student-based data with the employer-based data. Therefore, DHS did not quantify the marginal effect of the E-Verify enrollment provision.154 As a result, the estimated number of extensions shown in Table 3 does not include extensions that would have been filed by nonimmigrants meeting all other 4-year eligibility requirements, but attending institutions that do not participate in E-Verify. However, DHS conjectures that this bias is unlikely to be significant. Approximately 20% of the educational services industry establishments already participate in EVerify program.155 These establishments employ 80% this industry’s workers nation-wide. Assuming that the number of F–1 nonimmigrants is proportional to the number of employees in the educational services establishments, we expect the share of F–1 nonimmigrants in schools already enrolled in E-Verify to be substantial. This observation is further corroborated by the fact that 61% of F–1 nonimmigrants in SEVIS 60565 data are in 14% of schools that DHS has been able to match to E-Verify enrollment data.156 DHS calculated the total number of expected EOS requests from these criteria for FY 2016, FY 2017, and FY 2018, and used these yearly estimates to calculate the annual average number of EOS requests for both F–1 and F–2 nonimmigrants.157 Table 3 shows the EOS estimates for F nonimmigrants. DHS estimates that approximately 249,000 F–1 nonimmigrants would request an EOS per year, while approximately 31,000 F–2 nonimmigrants would be required to 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 ................................................................................................................... F–2 ................................................................................................................... 246,613 33,314 236,746 29,846 263,692 30,067 249,017 31,076 Total .......................................................................................................... 279,927 266,592 293,759 280,093 Estimates derived from SEVIS data. J–1 exchange visitor participants are individuals approved to participate in work and study-based exchange visitor programs, and J–2 nonimmigrants are their dependents. For example, J exchange visitor participants include individuals enrolled in alien physician programs, camp counselors, and au pairs, among others.158 The proposed rule would impose a fixed period of admission of up to 2 or 4 years on J nonimmigrants, depending on limitations on the length of admission. In order to identify the potentially affected J nonimmigrants, DHS estimated the number of individuals in FY 2016, FY 2017, and FY 2018 meeting the following limitation criteria which would require an EOS under the NPRM: • Program Length. The nonimmigrant’s program length exceeds 4 years; • Certain Countries. The nonimmigrant was born in or is a citizen of a country on the State Sponsors of Terrorism list or is a citizen of a country with a greater than 10 percent total overstay rate for students and exchange visitors according to the most recent DHS Entry/Exit Overstay report; 159 • Other Factors of U.S. National Interest. The nonimmigrant is subject to other factors determined to be in the U.S. national interest, which may include but not be limited to circumstances where there may be national security concerns or risks of fraud and abuse. These factors may be incorporated into an FRN to limit a student’s period of stay to a 2-year maximum; • E-Verify Enrollment. The nonimmigrant’s program sponsor is either not enrolled in E-Verify or, if enrolled, is not a participant in good standing in E-Verify as determined by USCIS. In this analysis, DHS does not present the number of individuals meeting each limitation criterion, as some individuals may meet multiple criteria. The affected population estimates reflect the overall effect of all of the NPRM’s limitations, rather than the marginal effects of each limitation. To estimate EOS requests, DHS analyzed nonimmigrant data to identify who would be subject to the limitation criteria in the year of analysis. DHS took the following steps to identify individuals who would be subject to these criteria in the year of analysis: 1. Program Length. For J nonimmigrants, DHS used the same 154 See Section VI.A.4 for additional discussion of the impacts associated with the E-Verify provision. 155 The nation-wide number of establishments and employment in the educational services industry (NAICS 61) comes from U.S. Census Bureau 2018 County Business Patterns data. The current E-Verify enrollment by establishment size category in the educational services industry comes from DHS USCIS E-Verify data at https://www.everify.gov/about-e-verify. 156 DHS used name- and location-based fuzzy matching procedure to establish approximate links between 7,689 active schools in SEVIS and 2,264 unique schools in E-Verify enrollment data. Only 1,100 schools have been able to be linked, and cursory review established that the pool of unmatched SEVIS schools does include other schools that may be matched manually. As such, DHS believes that 14% match rate for active schools in SEVIS underestimates the true E-Verify participation rate. 157 These numbers were developed using data from SEVIS. The SEVIS database was queried to extract data from FY 2016–2018. DHS used R Statistical Software to develop logic allowing DHS to identify individuals meeting the limitations specified in the proposed rule. DHS provides the SQL code used to query the SEVIS database and the R code used to develop the logic for this analysis on the proposed rule’s docket. 158 J exchange visitor programs include: Professors and research scholars; short-term scholars; trainees and interns; college and university students; teachers; secondary school students; specialists; alien physicians; international visitors; government visitors; camp counselors; au pairs; and summer work travel. See INA 101(a)(15)(j), 8 U.S.C. 1101(a)(15)(j) and 22 CFR 62.20–62.32. 159 A list of State Sponsors of Terrorism can be found at https://www.state.gov/state-sponsors-ofterrorism/. The overstay report for 2019 can be found at https://www.dhs.gov/sites/default/files/ publications/20_0513_fy19-entry-and-exit-overstayreport.pdf, see Table 4, Column 6. The overstay report for 2018 can be found at https:// www.dhs.gov/sites/default/files/publications/19_ 0417_fy18-entry-and-exit-overstay-report.pdf, see Table 4, Column 6. The 2017 Overstay Report can be found at https://www.dhs.gov/sites/default/files/ publications/18_1009_S1_Entry-Exit-Overstay_ Report.pdf, see Table 4, Column 6. The 2016 Overstay Report can be found at https:// www.dhs.gov/sites/default/files/publications/ Entry%20and%20Exit%20Overstay%20 Report%2C%20Fiscal%20Year%202016.pdf, see Table 4, Column 6. The analysis uses 87 countries with overstay rate greater than 10 percent in at least one of the analysis years (i.e., 2016, 2017, or 2018). khammond on DSKJM1Z7X2PROD with PROPOSALS2 Estimating EOS Requests for J Exchange Visitor Participants VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 E:\FR\FM\25SEP2.SGM 25SEP2 60566 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules approach described for F nonimmigrants in the Estimating EOS Requests for F Nonimmigrants section above to estimate individuals needing to file an EOS in the fourth year of their program; 2. Certain Countries. For J nonimmigrants, DHS used the same approach described for F nonimmigrants to estimate individuals needing to file an EOS due to meeting 2-year limitation criteria for their country of citizenship or country of birth; 3. Other Factors of U.S. National Interest. For J nonimmigrants, DHS applied the same approach described for F nonimmigrants, using participation in the field of nuclear physics or nuclear engineering as examples of programs that could pose a risk to U.S. national security, to estimate individuals needing to file an EOS due to meeting 2-year limitation criteria for factors that serve the U.S. national interest; 4. E-Verify Enrollment. DHS determined that any individual not employed by an employer enrolled in EVerify 160 in a year of their program that is a multiple of two (e.g., 2, 4, 6), not in the final year of their program, and enrolled in a program lasting longer than 2 years would be required to file an EOS. In cases where DHS did not have information about an employer’s EVerify enrollment, DHS assumed those employers were not enrolled in E-Verify unless the employer was a governmental organization. DHS does not have data on which governmental organizations are enrolled in E-Verify, but assumes that governmental agencies will typically be enrolled in E-Verify. In 2018,161 60 percent of non-governmental programs were not enrolled in E-Verify, 39 percent were enrolled in E-Verify, and 1 percent had no information on EVerify enrollment status.162 In addition, because of data limitations, DHS could not estimate impacts associated with participants not in good standing in EVerify as determined by USCIS. The proposed rule may encourage employers to enroll in E-Verify. Employers enrolling in E-Verify would incur additional cost burdens when they enroll in and continue to use the EVerify program. Employers would incur costs related to enrolling in the program, attending trainings, filling out associated forms, designating an EVerify administrator within the company, and using E-Verify to confirm their newly hired employees are eligible to work in the United States.163 DHS calculated the total number of expected EOS requests from these criteria for FY 2016, FY 2017, and FY 2018, and used these yearly estimates to calculate the annual average number of EOS requests for both J–1 and J–2 nonimmigrants.164 Table 4 shows the EOS estimates for J exchange visitors. DHS estimates that approximately 12,000 J–1 exchange visitors would request an EOS per year, while approximately 8,000 J–2 nonimmigrants would be required to apply for an EOS per year. TABLE 4—NUMBER OF J EXCHANGE VISITORS REQUIRING AN EOS PER YEAR Nonimmigrant category FY 2017 FY 2018 Average J–1 ................................................................................................................... J–2 ................................................................................................................... 10,711 7,641 10,992 7,872 12,993 8,784 11,565 8,099 Total .......................................................................................................... 18,352 18,864 21,777 19,664 DHS proposes to give I nonimmigrants an admission period of up to 240 days, after which an EOS may be available for those who can meet EOS requirements. In order to estimate the number of EOS requests that would likely be filed by I nonimmigrants, DHS calculated the number of individuals in I status in FY 2016, FY 2017, and FY 2018 staying for greater than 240 days.165 Any individual with a total incountry time of greater than 240 days was included in the analysis, as they would be required to get additional time from DHS, either by filing an EOS or departing the United States and applying for admission with CBP. Table 5 provides estimates for the number of I nonimmigrants that would apply for an EOS per year. Using this methodology, DHS estimates that approximately 1,200 I nonimmigrants would request an EOS each year. These estimates do not include I nonimmigrants with an initial admission period shorter than 240 days because they departed the United States before their total in-country time during the initial admission exceeds 240 days. After a very short departure from the United States, these same individuals could have returned to the United States, and their cumulative total period of stay for both admissions could have been longer than 240 days. Therefore, more than 1,200 I nonimmigrants may request an EOS per year, as this number does not capture the number of I nonimmigrants requesting additional time, only those with a period of stay longer than 240 days. DHS seeks public comment on ways to improve the estimate of the affected I nonimmigrant population. 160 Participation data from E-Verify Program System of Records, retrieved February 5, 2020. 161 DHS used 2018 data because the percentage difference in E-Verify enrollment for nongovernmental programs between years of analysis is minimal. Any variation between years is due to the number of programs active during each year. 162 The percentages presented represent the percentage of exchange visitor programs that are enrolled in E-Verify. One employer may sponsor multiple programs. Therefore, this number does not reflect the percentage of employers that will be affected by this rule. 163 For more information on E-Verify, go to www.e-verify.gov. 164 These numbers were developed using data from SEVIS. The SEVIS database was queried to extract data from FY 2016–2018. DHS used R Statistical Software to develop logic allowing DHS to identify individuals meeting the limitations specified in the proposed rule. DHS provides the SQL code used to query the SEVIS database and the R code used to develop the logic for this analysis on the proposed rule’s docket. 165 DHS used data from ADIS to derive these estimates. Data were presented as the number I nonimmigrants whose duration of status fell into a given range of time. For this analysis, DHS summed the number of individuals staying for greater than or equal to 241 days but less than 366 days and those staying for greater than or equal to 366 days in a given year to estimate the number of EOS requests that would be filed by I nonimmigrants. During 2016–2018, approximately 3 percent of I nonimmigrants had an initial admission period longer than 240 days. Estimating EOS Requests for I Nonimmigrants I nonimmigrants are bona fide representatives of foreign information media (such as press, radio, film, print) seeking to enter the United States to engage in such vocation, as well as the spouses and children of such aliens. See INA 101(a)(15)(I). khammond on DSKJM1Z7X2PROD with PROPOSALS2 FY 2016 VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 E:\FR\FM\25SEP2.SGM 25SEP2 60567 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules 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 Proposed 8 CFR 214.1(m)(1) would establish a transition period for phasing in admissions for a fixed time period. Specifically, F and J nonimmigrants present in the United States on the final rule’s effective date who are in D/S may remain in the United States in F or J status, without filing an EOS request and would be provided an authorized period of admission up to the program end date reflected on their Form I–20 or DS–2019 that is valid on the Final Rule’s effective date, not to exceed 4 years from the effective date of the Final Rule, as long as they do not depart the United States. See proposed 8 CFR 214.1(m)(1). I nonimmigrants would be provided an extension of the length of time it takes the alien to complete his or her activity, for a period of up to 240 days. See proposed 8 CFR 214.1(m)(3). To align with the proposed transition period, DHS adjusted the annual EOS estimates for F and J nonimmigrants over the 10-year period of analysis. The transition period for the I nonimmigrants did not require adjustments to the EOS estimates over the 10-year period of analysis as I nonimmigrants would not receive a period of admission over 240 days [going forward]. DHS anticipates that the rule would become effective in 2020 and estimated the number of EOS requests in each year from 2020 through 2029 (the 10-year period of analysis). F and J nonimmigrants would not automatically be required to file an EOS request when the rule goes into effect. Rather, F and J nonimmigrants would be required to request an additional period of admission by filing an EOS if they meet the criteria associated with the period of admission limitations discussed above or the transition period requirements or alternatively they could depart the United States and apply for readmission with CBP under the new rule. In order to estimate the number of EOS requests in each year, DHS segmented the period of analysis into three distinct phases: (1) The early transition period, (2) the end of transition period, and (3) the full implementation period. Figure 1 describes the F and J nonimmigrants 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 Period’’ 2020–2023 EOS request during the ‘‘End Transition Period’’ 2024 EOS request during the ‘‘Full Implementation Period’’ 2025–2029 Aliens extending their program end date: EOS requests resulting from extended program end dates using the annual average number of individuals in 2016–2018 who seek a program end date extension. Aliens extending their initial date certain: EOS requests resulting from program end dates ending after 2024 based on the average number of individuals between 2016–2018 with greater than 4 years left to accomplish their program. Aliens requiring an EOS outside of transition limitations: EOS requests resulting from extending the program end date and being subject to a 2-year limitation. Aliens requiring an EOS after transition period ends: The annual, ongoing average number of EOS requests expected each year. khammond on DSKJM1Z7X2PROD with PROPOSALS2 Aliens subject to a 2-year limitation: EOS requests resulting from 2-year limited aliens using the annual average number of individuals in 2016–2018 who meet the 2-year limitation criteria. These individuals are added in 2022–2023. In the early transition period, DHS assumes that, from 2020–2021, only F and J nonimmigrants extending their program end date beyond the program end date noted on their Form I–20 or DS–2019 would be filing an EOS because no other period of stay limitation would be triggered within the first 2 years of the transition period. Using FY 2016, FY 2017, and FY 2018 data, DHS estimates that approximately 203,000 EOS requests would be filed annually in 2020 and 2021.166 DHS 166 DHS developed these estimates by looking at the data cross-sectionally and estimating how many individuals in each year would meet the necessary criteria for each stage of the transition period. DHS provides the R code used to develop the logic for this analysis on the proposed rule’s docket. These numbers were developed using data from SEVIS. The SEVIS database was queried to extract data from FY 2016–2018. DHS used R Statistical VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 expects only F and I nonimmigrants would be required to file EOS requests in this period as the SEVIS data do not have records of J nonimmigrants extending their end date. Beginning in 2022, DHS assumes that individuals subject to a 2-year limitation on the period of admission who were admitted after the effective date of the rule would begin filing EOS requests. Therefore, in 2022 and 2023, there would be two types of EOS requests filed: Those from individuals requesting an EOS due to a 2-year period of admission, and those from individuals Software to develop logic allowing DHS to identify individuals meeting the limitations specified in the proposed rule. DHS provides the SQL code used to query the SEVIS database and the R code used to develop the logic for this analysis on the proposed rule’s docket. PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 requesting extensions to continue their same program or degree. Using FY 2016, FY 2017, and FY 2018 data, DHS estimates that approximately 259,000 EOS requests will be filed annually in the years 2022–2023.167 DHS anticipates that there would not be any nonimmigrants currently in the country in F, J, or I status at the time that the rule becomes effective who would receive a fixed period of admission that extends past 2024 because the transition period has a 4167 These numbers were developed using data from SEVIS. The SEVIS database was queried to extract data from FY 2016–2018. DHS used R Statistical Software to develop logic allowing DHS to identify individuals meeting the limitations specified in the proposed rule. DHS provides the SQL code used to query the SEVIS database and the R code used to develop the logic for this analysis on the proposed rule’s docket. E:\FR\FM\25SEP2.SGM 25SEP2 60568 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules year limitation. DHS assumes that this provision could lead to a spike in EOS requests in 2024, at the end of the transition period. To estimate EOS requests at the end of the transition period, DHS calculated the average number of individuals in FY 2016, FY 2017, and FY 2018 with more than 4 years left to complete their program. This number acts as a proxy for the number of individuals who would receive a fixed period of admission ending in 2024 when the rule goes into effect but would still need to request additional time to finish their program. DHS added these additional individuals to individuals extending their program, and those meeting the 2-year limitation in 2024. DHS estimates that approximately 364,000 nonimmigrants would file an EOS in 2024. After the end of the transition period, DHS assumes that all F, J and I nonimmigrants would have a fixed date of admission. During this time, all nonimmigrants needing to file an EOS for any reason would need to request an additional period of admission from DHS, either by filing an EOS with USCIS or by applying for admission with CBP. DHS estimates that between 2025– 2029 approximately 301,000 EOS applications would be filed with USCIS annually. Table 6 provides the estimated number of EOS requests per year from each nonimmigrant category for the full 10-year period of analysis, showing the fluctuations across the early transition period, the end of the transition period, and the full implementation period. TABLE 6—NUMBER OF EOS REQUESTS BY NONIMMIGRANT CATEGORY AND YEAR Early transition period End of transition Nonimmigrant category 2020 2021 F–1 ............................................................ F–2 ............................................................ J–1 ............................................................. J–2 ............................................................. I ................................................................. 180,787 21,118 ................ ................ 1,197 Total ................................................... 203,103 Full implementation period 2022 2023 2024 2025 2026 2027 2028 2029 180,787 21,118 ................ ................ 1,197 218,459 25,976 7,838 5,790 1,197 218,459 25,976 7,838 5,790 1,197 309,379 36,087 10,138 7,259 1,197 249,017 31,076 11,565 8,099 1,197 249,017 31,076 11,565 8,099 1,197 249,017 31,076 11,565 8,099 1,197 249,017 31,076 11,565 8,099 1,197 249,017 31,076 11,565 8,099 1,197 203,103 259,261 259,261 364,060 300,954 300,954 300,954 300,954 300,954 Estimates derived from SEVIS and ADIS data. khammond on DSKJM1Z7X2PROD with PROPOSALS2 4. Costs and Benefits of the Proposed Rule Costs DHS proposes to admit nonimmigrants seeking entry under the F, J, and I nonimmigrant categories for the period required to complete their academic program, foreign information media employment, or exchange visitor program. For F and J nonimmigrants, the period of admission would not exceed 4 years, or 2 years for F and J nonimmigrants meeting certain factors. For I nonimmigrants, the period of admission would not exceed 240 days. As these nonimmigrants would have a fixed time period of admission, this proposal includes provisions that would require nonimmigrants to apply for an EOS directly with USCIS or apply for admission with CBP and receive an admit until date on their Form I–94 if seeking to continue their studies, to participate in any type of post completion training related to their academic course of study, to continue working in their information medium, or to participate in an exchange visitor program beyond the initial admission period granted at entry. DHS assessed the costs and benefits of the proposed rule relative to the existing baseline, that is, the current practice of admitting F, J, and I nonimmigrants for D/S, as well as monitoring and overseeing these categories of nonimmigrants. As summarized in RIA Section VI.A.1 Table 1, some impacts of the proposed requirements are VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 discussed throughout this section qualitatively. In accordance with the regulatory analysis guidance articulated in OMB Circular A–4 and consistent with DHS’s practices in previous rulemakings, this regulatory analysis focuses on the likely consequences of the proposed rule (i.e., costs and benefits that accrue to affected entities). The analysis covers 10 years (2020 through 2029) to ensure it captures major costs and benefits that accrue over time. DHS expresses all quantifiable impacts in 2018 dollars and uses 7 percent and 3 percent discounting following OMB Circular A–4. DSO and RO Rule Familiarization and Adaptation Costs The proposed rule would impact DSOs and ROs from SEVP-certified schools and exchange visitor programs that run a SEVP or DOS approved program by requiring time for rule familiarization training, modification of training materials, and institutional awareness and response (during the first year only). I foreign information media representatives would not incur similar costs from the proposed rule as those incurred by DSOs and ROs because the burden for filing an EOS request falls on the I nonimmigrant, who, DHS assumes that in the baseline familiarize themselves with the pertinent visa requirements at the time the visa is needed, not at the point in time that Federal regulations change. DHS expects this behavior would not change PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 as a result of the rule and, as a result, there would be no incremental costs associated with rule familiarization and adaptation for I foreign information media representatives. Based on best professional judgment, SEVP estimates that DSOs and ROs would require 8 hours to complete rule familiarization training, 16 hours to create and modify training materials, and 16 hours to adapt to the proposed rule through system wide briefings and systemic changes. DHS welcomes public comments on these estimates. To estimate these costs, DHS multiplied the total time requirement (40 hours) by the loaded wage rate for DSOs and ROs ($28.93 wage rate * a 1.46 loaded wage rate factor 168) and by the number of DSOs and ROs (55,207; 49,089 DSOs + 6,118 ROs 169). DHS estimates that DSO 168 Based on the Bureau of Labor Statistics (BLS) average hourly wage for SOC 21–1012 (Educational, Guidance, School, and Vocational Counselors), available at: https://www.bls.gov/oes/2018/may/ oes211012.htm. The benefits-to-wage multiplier is calculated by the BLS as (Total Employee Compensation per hour)/(Wages and Salaries per hour) = $36.32/$24.91 = 1.458 (1.46 rounded) based on the average national wage for all occupations (wages represent 68.6 percent of total compensation). See Economic News Release, Employer Cost for Employee Compensation (March 2019), U.S. Dept. of Labor, BLS, Table 1. Employer costs per hour worked for employee compensation and costs as a percent of total compensation: Civilian workers, by major occupational and industry group (March 19, 2019), available at: https://www.bls.gov/news.release/archives/ecec_ 03192019.pdf. 169 The number of DSOs and ROs were pulled from SEVIS and are current as of September 2019. E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules and RO rule familiarization and adaptation would cost $93.3 million during the first year once the rule takes effect ($28.93 × 1.46 loaded wage rate factor × 40 hours × 55,207 DSOs and ROs). khammond on DSKJM1Z7X2PROD with PROPOSALS2 Extension of Stay Filing Costs Under the proposed rule, nonimmigrants who would like to extend their stay beyond their fixed period of admission would need to apply for additional time directly with DHS. Under the proposed framework, nonimmigrants could choose to file an EOS using the appropriate form from USCIS or apply for admission with CBP at a POE. DHS assumes nonimmigrants with existing international travel plans would prefer to request extensions with CBP at a POE rather than incurring the costs of filing an EOS. Because DHS is unable to estimate how many nonimmigrants would prefer to extend with CBP, DHS’ best assessment of the cost of the proposed rule to the affected population is based on the assumption that each extension will require a Form I–539 filing. Actual costs to the affected population could be lower for those nonimmigrants able to extend while traveling through a POE.170 During the transition, F and J nonimmigrants who are properly More information on SEVIS can be found at https:// www.ice.gov/sevis/overview. 170 DHS is unable to estimate how many individuals would seek an extension to their period of stay while traveling through a POE instead of filing the I–539 or I–539A form. The analysis thus assumes that all F, J, and I nonimmigrants requiring an EOS would file using the I–539 or I–539A form. If DHS made the opposite assumption—that all F, J, and I nonimmigrants requiring an EOS would extend while traveling through a POE—the cost estimates would change in the following ways. First, F, J, and I nonimmigrants would not pay the I–539 or I–539A filing and biometric processing costs. However, the process of applying for readmission at a POE would require 8 minutes of time for each F, J, or I nonimmigrant requiring an EOS. The time estimate of 8 minutes is based on the time required for completing a paper I–94 form (Supporting Statement A for Form I–94, ‘‘Arrival and Departure Record’’, OMB Control Number 1651–0111). The cost to F, J, and I nonimmigrants for applying for readmission at a POE translates to a total undiscounted cost of $5.0 million over the 2020–2029 analysis period using the number of EOS requests presented in Table 6 and the nonimmigrant wage rates described in Table 7. F, J, and I nonimmigrants would also incur costs to travel to a POE. Second, CBP officers would also spend 8 minutes of time per F, J, or I nonimmigrant applying for readmission at a POE. Using a loaded wage rate of $87.94 (salary and benefit information was provided by CBP Office of Finance to ICE on April 9, 2020) and the number of EOS requests presented in Table 6, the cost to CBP officers for completing readmission at a POE for F, J, and I nonimmigrants requiring an EOS translates to $32.8 million over the 2020–2029 analysis period. DHS anticipates that the CBP labor burden required to processes readmissions at a POE can be incorporated in existing procedures without requiring additional staff. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 maintaining their status, are present in the United States when the rule takes effect, and were admitted for D/S would be authorized to remain in the United States for a period of time up to the program end date noted on their Form I–20 or DS–2019, plus 30 days, not to exceed a period of 4 years. I nonimmigrants who are properly maintaining their status and are present in the United States when the rule takes effect would have their status, and employment authorization incident to such status, automatically extended for a period necessary to complete their activity, not to exceed 240 days after the rule takes effect. Any F academic students, J exchange visitors, and I representatives of foreign information media who are present when the rule takes effect would need to apply for an EOS if they require additional time required beyond the maximum specified transition time period. EOS applicants would need to file Form I–539 (F–1, J–1, and I nonimmigrants) or Form I–539A (F–2, J– 2 nonimmigrants, and I dependents), depending on the nonimmigrant category, in order to extend their period of stay. DHS assumes that all F–2 nonimmigrants, J–2 nonimmigrants, and I dependents would complete the I– 539A instead of completing a separate Form I–539 because the I–539A is less burdensome to complete and does not require a separate application fee.171 However, I nonimmigrant data contained the representatives of foreign information media and their dependents, without differentiating between the two. As a result, this analysis overestimates EOS filing costs for I nonimmigrants by assigning the primary I nonimmigrant costs to both the representatives of foreign information media and their dependents. The most recently approved Paperwork Reduction Act (PRA) Information Collection Package Supporting Statement for Form I–539 at the time of this analysis, which provides the average applicant burden estimates for completing and submitting the form, states that F–1, J–1, and I nonimmigrants require 2.0 hours to complete a paper version of the Form I– 539 (70 percent of applicants) or 1.08 hours to complete an electronic version (30 percent of applicants), and F–2 and J–2 nonimmigrants require 0.5 hours to 171 Form I–539 instructions ask applicants to list all family members in Form I–539A. Therefore, it is reasonable to assume that the co-applicants (F– 2, J–2 nonimmigrants and I dependents) will use Form I–539A. PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 60569 complete the I–539A form.172 USCIS’s Inadmissibility on Public Charge Grounds Rule, published August 14, 2019, increased burden for the paper version of the Form I–539 to 2.38 hours due to the collection of additional information related to public benefits.173 84 FR 157 (Aug. 14, 2019). In addition to the labor burden of completing the Form I–539, DHS estimates in the Supporting Statement for Form I–539 that 35 percent of F–1, J–1, and I applicants may incur additional expenses for third party assistance to prepare responses, legal services, translators, and document search and generation. For those applicants who seek additional assistance, the average cost for these activities is approximately $490. DHS assumes that F–2 and J–2 applicants would not incur additional expenses for outside assistance and would instead work with the F–1 and J–1 applicants to complete the I–539A form. In addition to completing the Form I– 539/I–539A, all F, J, and I applicants would be required submit biometrics. The submission of biometrics requires travel to an application support center (ASC) for the biometric services appointment,174 with an average roundtrip travel time of 2.5 hours.175 The Supporting Statement for Form I–539 estimates that each would spend 1 hour and 10 minutes (1.17 hours) at an ASC to submit biometrics. Summing the ASC time and travel time yields 3.67 hours for each applicant to submit biometrics. F, J, and I nonimmigrants would pay fees to USCIS to file the Form I–539 and complete biometric processing, as described in the Supporting Statement for Form I–539. F–1, J–1, and I nonimmigrants would pay a $370 fee when submitting the Form I–539 (F–2 and J–2 nonimmigrants would not be required to pay a fee when submitting 172 Time estimates are taken from the Supporting Statement A for Form I–539, ‘‘Application to Extend/Change Nonimmigrant Status’’, found at: https://www.reginfo.gov/public/do/ PRAViewDocument?ref_nbr=201907-1615-012. 173 Instructions for Application to Extend/Change Nonimmigrant Status, available at https:// www.uscis.gov/system/files_force/files/form/i539instr-pc.pdf (last visited Apr. 14, 2020). 174 DHS expects the majority of biometrics appointments to occur in the United States at an ASC. However, in certain instances nonimmigrants may submit biometrics at an overseas USCIS office or DOS Embassy or consulate. However, because DHS does not currently have data tracking the specific number of biometric appointments that occur overseas, it uses the cost and travel time estimates for submitting biometrics at an ASC as an approximate estimate for all populations submitting biometrics in support of an EOS request. 175 See DHS Final Rule, Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 FR 535 (Jan. 3, 2013). E:\FR\FM\25SEP2.SGM 25SEP2 60570 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules the I–539A form).176 All F, J, and I nonimmigrants who file an EOS would be required to pay an $85 fee for biometric processing. Lastly, the EOS filing cost estimates account for travel costs to an ASC to submit biometrics. In past rulemakings, DHS estimated that the average round-trip distance to an ASC is 50 miles.177 Using the 2020 General Services Administration (GSA) rate of $0.58 per mile,178 the travel costs are $29. DHS assumes that F–2 and J– 2 applicants would not incur these travel costs since they would likely travel to an ASC with the F–1 and J–1 applicants. Table 7 provides the unit cost and references for the costs for completing and submitting the Form I–539/I–539A and biometrics for each nonimmigrant category. TABLE 7—APPLICANT UNIT COSTS FOR FILING AN EXTENSION OF STAY WITH USCIS [2018$] F–1 [a] Average applicant burden for paper applications (in hours) 1 ............................................................................. [b] Average applicant burden for electronic applications (in hours) 2 ............................................................................. [c] Average biometric processing burden (in hours) 3 ......... [d] Total labor burden for paper applications (in hours) [a] + [c] .................................................................................. [e] Total labor burden for electronic applications (in hours) [b] + [c] ............................................................................. [f] Average hourly wage rate ............................................... [g] Filing fee 4 ....................................................................... [h] Biometrics fee 4 ............................................................... [i] Travel costs to ASC to submit biometrics 5 ..................... [j] Burden costs for paper applications not requiring outside help 6 ([d] * [f]) + [g] + [h] + [i] .................................. [k] Burden costs for electronic applications not requiring outside help 7 ([e] * [f]) + [g] + [h] + [i] ............................. [l] Additional expenses for outside help with form 8 ............ [m] Burden costs for paper applications requiring outside help 9 [j] + [l] ..................................................................... [n] Burden costs for electronic applications requiring outside help 10 [k] + [l] ........................................................... F–2 J–1 J–2 I 2.38 0.50 2.38 0.50 2.38 1.08 3.67 0.5 3.67 1.08 3.67 0.5 3.67 1.08 3.67 6.05 4.17 6.05 4.17 6.05 4.75 4.17 4.75 4.17 4.75 11 $12.05 11 $12.05 12 $36.47 12 36.47 13 $36.81 $370 $85 $29 N/A $85 N/A $370 $85 $29 N/A $85 N/A $370 $85 $29 $557 $135 $705 $237 $707 $541 $490 $135 N/A $657 $490 $237 N/A $659 $490 $1,047 N/A $1,195 N/A $1,197 $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. 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 requiring 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 outside 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% requiring 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 benefits-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-itto-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 minimum 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 Communication 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. khammond on DSKJM1Z7X2PROD with PROPOSALS2 2 Supporting 176 Effective October 2, 2020, DHS raises the I– 539 fee to $400 for paper filing, $390 for online filing and lowers the Biometrics fee from $85 to $30. See DHS Final Rule, U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 Requirements, 85 FR 46788 (August 3, 2020). At the time of this analysis, the fees had not been finalized, so the fee of $370 and biometric fee of $85 was used in the analysis. PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 177 See DHS Final Rule, Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 FR 535 (Jan. 3, 2013). 178 https://www.gsa.gov/travel/plan-book/ transportation-airfare-rates-pov-rates/privatelyowned-vehicle-pov-mileage-reimbursement-rates. E:\FR\FM\25SEP2.SGM 25SEP2 60571 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules DHS multiplied the expected number of EOS requests for F, J, and I nonimmigrants (Table 6) by the appropriate applicant unit costs (Table 7) to estimate EOS filing costs. As shown in Table 7, DHS assumed that 45.5 percent of F–1, J–1, and I nonimmigrants would incur burden costs for paper applications without outside help, 19.5 percent would incur burden costs for electronic applications without outside help, 24.5 percent would incur burden costs for paper applications with outside help, and 10.5 percent would incur burden costs for electronic applications with outside help. Burden costs for F–2 and J–2 nonimmigrants remain constant because their labor burden does not vary depending on paper versus electronic filing, and DHS assumes that F–2 and J– 2 nonimmigrants would not pay for outside assistance with the I–539A form. Table 8 presents undiscounted EOS filing costs by nonimmigrant category and year, along with a breakdown of costs based on filing type (paper or electronic) and the need for outside help to complete the form. EOS filing costs are lowest during the early transition period (2020–2023) and highest at the end of the transition period (2024) because of the variation in the estimated number of EOS requests (Table 6). TABLE 8—EOS FILING COSTS BY NONIMMIGRANT CATEGORY AND YEAR [Millions 2018$, undiscounted] Early transition period End of transition Number of EOS/cost 2020 2021 2022 2023 Full implementation period 2024 2025 2026 2027 2028 2029 F–1 F–1 EOS Requests ................................... Paper filing cost, no help 1 ........................ E-filing cost, no help 2 ............................... Paper filing cost, with help 3 ...................... E-filing cost, with help 4 ............................. 180,787 $45.8 $19.1 $46.4 $19.6 180,787 $45.8 $19.1 $46.4 $19.6 218,459 $55.4 $23.1 $56.0 $23.7 218,459 $55.4 $23.1 $56.0 $23.7 309,379 $78.4 $32.7 $79.4 $33.5 249,017 $63.1 $26.3 $63.9 $27.0 249,017 $63.1 $26.3 $63.9 $27.0 249,017 $63.1 $26.3 $63.9 $27.0 249,017 $63.1 $26.3 $63.9 $27.0 249,017 $63.1 $26.3 $63.9 $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 ................................... Paper filing cost, no help 5 ........................ E-filing cost, no help 6 ............................... 21,118 $2.0 $0.9 21,118 $2.0 $0.9 25,976 $2.5 $1.1 25,976 $2.5 $1.1 36,087 $3.4 $1.5 31,256 $3.0 $1.3 31,256 $3.0 $1.3 31,256 $3.0 $1.3 31,256 $3.0 $1.3 31,256 $3.0 $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 7,838 $2.5 $1.0 $2.3 $0.9 10,138 $3.3 $1.3 $3.0 $1.2 11,565 $3.7 $1.5 $3.4 $1.4 11,565 $3.7 $1.5 $3.4 $1.4 11,565 $3.7 $1.5 $3.4 $1.4 11,565 $3.7 $1.5 $3.4 $1.4 11,565 $3.7 $1.5 $3.4 $1.4 $6.8 $8.7 $10.0 $10.0 $10.0 $10.0 $10.0 J–1 J–1 EOS Requests ................................... Paper filing cost, no help 1 ........................ E-filing cost, no help 2 ............................... Paper filing cost, with help 3 ...................... E-filing cost, with help 4 ............................. 0 $0.0 $0.0 $0.0 $0.0 0 $0.0 $0.0 $0.0 $0.0 7,838 $2.5 $1.0 $2.3 $0.9 J–1 Total ............................................ $0.0 $0.0 $6.8 J–2 J–2 EOS Requests ................................... Paper filing cost, no help 5 ........................ E-filing cost, no help 6 ............................... 0 $0.0 $0.0 0 $0.0 $0.0 5,790 $1.0 $0.4 5,790 $1.0 $0.4 7,259 $1.2 $0.5 8,099 $1.3 $0.6 8,099 $1.3 $0.6 8,099 $1.3 $0.6 8,099 $1.3 $0.6 8,099 $1.3 $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 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 I khammond on DSKJM1Z7X2PROD with PROPOSALS2 I EOS Requests ........................................ Paper filing cost, no help 1 ........................ E-filing cost, no help 2 ............................... Paper filing cost, with help 3 ...................... E-filing cost, with help 4 ............................. 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $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 in 2018 dollars would be $1.8 billion undiscounted,179 or $1.6 billion and 179 The undiscounted total differs slightly from the sum of the years provided in Table 8 because of rounding in the table values. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 $1.3 billion at discount rates of 3 and 7 percent, respectively. The annualized cost of extension of stay filing over the 10-year period would be $187.4 million E:\FR\FM\25SEP2.SGM 25SEP2 60572 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules and $192.2 million at discount rates of 3 and 7 percent, respectively. DSO/RO Costs for Processing Program Extension Requests and Updating SEVIS SEVIS is a web-based system that DHS and DOS use to maintain information regarding: SEVP-certified schools; F–1 and M–1 students studying in the United States (and their F–2 and M–2 dependents); DOS-designated Exchange Visitor Program sponsors; and J–1 Exchange Visitor Program participants (and their J–2 dependents). Under the proposed rule, DSOs and ROs would need to process program extension requests, update SEVIS entries, and provide counseling for any students requesting a program extension. Based on best professional judgment, SEVP estimates that DSOs/ ROs would require 3 hours per EOS request for reviewing the program extension requests by the student (1 hour), updating the SEVIS record and tracking program extension requests (1 hour), and advising the student or exchange visitor about the extension process and the requirements to file an EOS with USCIS (1 hour). To estimate DSO/RO costs for processing program extension requests and updating SEVIS, DHS multiplied the estimated number of EOS requests for F–1 and J–1 nonimmigrants (Table 6) by the expected DSO/RO time requirement per EOS request (3 hours) and the DSO/RO loaded wage rate ($28.93 × 1.46 loaded wage rate factor). DHS assumed that, on average, the 3hour time estimate accounted for time required to update SEVIS entries for F– 2 and J–2 dependents. The per-program extension DSO/RO costs would be $126.72 (3 hours × $28.93 × 1.46 loaded wage rate factor). Table 9 presents undiscounted DSO/ RO costs for processing program extension requests and updating SEVIS throughout the 2020–2029 study period. Similar to EOS filing costs, DSO/RO costs for processing program extension requests and updating SEVIS are lowest during the early transition period (2020–2023) and highest at the end of the transition period (2024) because of the variation in the estimated number of EOS requests (Table 6). TABLE 9—DSO/RO COSTS FOR PROCESSING PROGRAM EXTENSION REQUESTS BASED ON EOS REQUESTS AND UPDATING SEVIS, BY YEAR [Millions 2018$, undiscounted] Early transition period Number of EOS Requests1 ....................... Costs 2 ...................................................... 1 Sum End of transition Full implementation period 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 180,787 $22.91 180,787 $22.91 226,297 $28.67 226,297 $28.67 260,582 $33.02 260,582 $33.02 260,582 $33.02 260,582 $33.02 260,582 $33.02 260,582 $33.02 of EOS request estimates for F–1 students and J–1 exchange visitors. of EOS requests) × (3 hours) × (DSO/RO wage rate of $28.93) × (loaded wage rate factor of 1.46). khammond on DSKJM1Z7X2PROD with PROPOSALS2 2 (Number The total cost estimate for DSO/RO program extension requests processing and SEVIS updates would be $308.7 million undiscounted,180 or $268.7 million and $226.9 million at discount rates of 3 and 7 percent, respectively. The annualized cost of EOS filings over the 10-year period would be $31.5 million and $32.3 million at discount rates of 3 and 7 percent, respectively. DHS acknowledges that there may be additional costs to the government to upgrade SEVIS and provide additional support services to implement the proposed rule. DHS anticipates there may be costs for SEVIS development, supplemental Federal staff to assist in the development, increased call center volume, and operation and maintenance of SEVIS databases and other DHS IT systems. The costs for the SEVIS upgrade and support services would depend on the timeline for completion of the initial upgrade. DHS preliminary estimates show that under a 6-month timeline for upgrades, the costs in FY 2020 would be $22.5 million. This estimate includes costs for 55 additional Federal employees to handle the SEVIS development, additional call center volume, and operation and 180 The undiscounted total differs slightly from the sum of the years provided in Table 9 because of rounding in the table values. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 maintenance. Of the 55 additional positions, 23 of the positions would be temporary one-year positions to develop SEVIS and 32 of the positions would be permanent positions to handle the ongoing operation and maintenance and the additional call center volume. In FY 2021- FY 2029, there would be an annual cost of $16 million for the 32 additional Federal employees to handle the ongoing operation and maintenance of SEVIS databases and other DHS IT systems and to account for the additional call center volume. The timeline for completion would impact the total SEVIS upgrade cost estimate. If DHS lengthens the timeline for implementing the provisions of this rule, DHS may be able to use existing resources to complete the necessary upgrades. In addition to the changes due to this proposed rule, DHS is updating SEVIS due to other SEVP programmatic goals. The cost estimates of $22.5 million in FY 2020 and $16 million in FY 2021– FY 2029 include costs that are necessary to implement the provisions of this proposed rule but may have been implemented without this proposed rule. Therefore, these costs are not accounted for in the total cost of this proposed rule. PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 Requests for Additional Information or In-Person Interviews For a subset of EOS request cases, USCIS may request additional information or conduct an in-person interview if the applicant has raised concerns of a risk to national security or public safety, possible criminal activity, or status violation. These requests would result in costs for both USCIS and the nonimmigrant EOS applicant. The additional burden on USCIS would depend on the time required to obtain and review the additional information or conduct the in-person interview. DHS anticipates that the additional burden on applicants, on average, would be equivalent to the added expense of seeking third party assistance for completing the Form I–539, or $490. Because the percentage of nonimmigrants that USCIS would ask to provide additional information or participate in an in-person interview is uncertain, this analysis does not quantify the costs of such requests on either nonimmigrants or USCIS. Potential Reduction in Enrollment While the intent of the proposed rule is to enhance national security, the elimination of duration of status has the potential to reduce the nonimmigrant student enrollment and exchange visitor participation. This regulatory impact E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules analysis considers these potential impacts for each category of nonimmigrant affected by the proposed rule. khammond on DSKJM1Z7X2PROD with PROPOSALS2 F and J Nonimmigrants Affiliated With SEVP-Certified Schools The proposed rule may adversely affect U.S. competitiveness in the international market for nonimmigrant student enrollment and exchange visitor participation. Specifically, the proposed changes could decrease nonimmigrant student enrollments in the United States with corresponding increased enrollments in other English-speaking countries, notably in Canada, Australia, and the United Kingdom. Student visas and resulting nonimmigrant status in other English-speaking countries are typically valid for the duration of the student’s course enrollment, so students are not generally required to file an EOS application. For example, Australia’s most common student visa (Subclass 500) provides for an admission for a length of stay that corresponds to the student’s enrollment, which may be more than 4 years.181 Similarly, a Canadian study permit is typically valid for the length of the study program, plus an extra 90 days to let the student prepare to leave Canada or apply to extend their stay.182 The admission period for a nonimmigrant with a Tier 4 (General) student visa in the United Kingdom depends on the length of the course as stated in the student’s Confirmation of Acceptance for Studies. International students in the UK are granted a certain number of additional months at the end of the course to prepare for departure, apply to extend their stay or change their status, depending on the original course length.183 In each case, some nonimmigrant students may consider other countries’ visa programs to be less restrictive relative to the proposed rule, as they would not be required to file an application to extend their stay and incur this additional expense. Although it affects only those F–1 nonimmigrants who are applying for an extension of 181 Australian Government, Department of Home Affairs: Immigration and Citizenship, Subclass 500 (Student Visa). Retrieved from: https:// immi.homeaffairs.gov.au/visas/getting-a-visa/visalisting/student-500#Overview https:// immi.homeaffairs.gov.au/visas/getting-a-visa/visalisting/student-500#Overview. 182 Government of Canada, Immigration and Citizenship, Study Permit: About the Process. Retrieved from: https://www.canada.ca/en/ immigration-refugees-citizenship/services/studycanada/study-permit.html https://www.canada.ca/ en/immigration-refugees-citizenship/services/studycanada/study-permit.html. 183 Gov.uk, General Student Visa (Tier 4). Retrieved from: https://www.gov.uk/tier-4-generalvisa. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 stay for additional time to complete their program who cannot establish that the reason for requesting an extension is due to compelling academic reasons, a documented illness or medical condition, or circumstances beyond the student’s control, or have otherwise failed to maintain status, the possibility of an extension being denied and the student thus not being able to complete the degree in the U.S. might affect the student’s choice of country in which to study. As a result, nonimmigrant students and exchange visitors may be incentivized to consider other Englishspeaking countries for their studies. Nonimmigrant student enrollment and exchange visitor participation contributes to the U.S. economy. The Institute of International Education estimates that during the 2018 academic year, international students alone had an economic impact of $44.7 billion from tuition and fees, food, clothing, travel, textbooks, and other spending.184 If these students and exchange visitors choose another country over the United States because of this proposed rule, then the reduced demand could result in a decrease in enrollment, therefore, impacting school programs in terms of forgone tuition and other fees, jobs in communities surrounding schools, and the U.S. economy. DHS conducted a literature search to find research estimating impacts associated with actions like the proposed requirements and found related research like the Institute of International Education’s Open Doors®, as cited above, and NAFSA’s Economic Value Tool 185 that provide annual estimates of the economic contribution of international students to the U.S. economy. While DHS acknowledges that the rule may decrease nonimmigrant student enrollments, there are many factors that make the United States attractive to nonimmigrant students and exchange visitors beyond the allowable admission period. For example, Daily, Farewell, and Guarav (2010) found that international students pursuing a business degree in the United States rate opportunities for post-graduation employment, availability of financial aid, and reputation of the school as the most important factors in selecting a 184 Institute of International Education, 2019 Open Doors® Report on International Educational Exchange, Retrieved from: https://www.iie.org/WhyIIE/Announcements/2019/11/Number-ofInternational-Students-in-the-United-States-HitsAll-Time-High. 185 NAFSA: Association of International Educators, Economic Value Statistics, Retrieved from: https://www.nafsa.org/policy-and-advocacy/ policy-resources/nafsa-international-studenteconomic-value-tool-v2#main-content (last visited Apr. 14, 2020). PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 60573 university.186 These factors may outweigh the perceived impacts from the proposed admission for a fixed period. Other J Exchange Visitors For other J exchange visitors, such as government visitors and alien physicians, DHS does not believe there would be a significant impact in participation. Alternatives to U.S.-based exchange visitor programs (outside of academia) may be more difficult to find in other countries, providing less of an incentive for nonimmigrants to choose an alternative. S. I Foreign Information Media Representatives Similar to J exchange visitors not affiliated with SEVP-certified schools, DHS does not believe the proposed rule would have a significant impact on I nonimmigrants. Using ADIS data from 2016–2018, DHS found that on average, 97 percent of I nonimmigrants have a period of stay shorter than 240 days, and there are fewer proposed changes to the I category relative to other nonimmigrants, such as F nonimmigrants. Therefore, DHS does not expect a reduction in admissions of I nonimmigrants. DHS appreciates the importance of nonimmigrant student enrollment and exchange visitor participation to the U.S. culture and economy, but acknowledges the potential for the proposed rule to affect future nonimmigrant student enrollment and exchange visitor participation and associated revenue. DHS requests comment on this potential impact, including literature, data, and research estimating nonimmigrant student enrollment and exchange visitor participation impacts and the potential effect of the requirements on schools or sponsors and the larger economy. Implementation and Operations Costs Incurred by CBP DHS acknowledges there would be implementation and operational costs to the U.S. Government associated with assessing aliens at the POE for purposes of authorizing an admission period of 2 or 4 years. CBP officers would need training on new systems and procedures for conducting inspections at the POE. Once the rule is effective, CBP officers would need readily accessible information on the applicant to assist in 186 Daily, C., Farewell, S., & Guarav, K., (2010). Factors Influencing the University Selection of International Students, Academy of Educational Leadership Journal, 14(3), 59–75, Retrieved from: https://www.abacademies.org/articles/ aeljvol14no32010.pdf (last visited Apr. 14, 2020). E:\FR\FM\25SEP2.SGM 25SEP2 60574 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules (1) assessing the appropriate length of stay for admission; and (2) making an admissibility assessment in cases of readmission. DHS may require modification to the Primary Processing System to deliver this information to CBP officers. DHS continues to explore the necessary upgrades to systems and procedures that would allow CBP officers to perform their duties in accordance with this proposed rule. Therefore, this analysis does not quantify the costs associated with training CBP officers or the operational costs associated with new systems and procedures. khammond on DSKJM1Z7X2PROD with PROPOSALS2 E-Verify DHS is proposing a 2-year limitation on F nonimmigrants accepted to and attending schools not enrolled in EVerify, or if enrolled, not a participant in good standing in E-Verify as determined by USCIS. DHS also is proposing a 2-year limitation on J nonimmigrants participating in an exchange visitor program whose sponsor is not enrolled in E-Verify, or if enrolled, not a participant in good standing in E-Verify as determined by USCIS. The proposed rule would require these nonimmigrants to file an EOS request every 2 years to extend their stay. The EOS estimates and quantitative cost impacts incorporate E-Verify enrollment for J exchange visitor program sponsors. This was done by matching the employer identification number for J exchange visitor program sponsors with the employer identification number for employers enrolled in E-Verify. However, DHS was not able to control for E-Verify enrollment for schools attended by F nonimmigrants because the student data did not contain the employer identification number for schools attended by F nonimmigrants. DHS attempted to manually identify schools enrolled in E-Verify using fields such as school name and employer name, but was unsuccessful. For this reason, DHS did not quantify the impact of the EVerify provision on F nonimmigrants in this analysis.187 Batch Processing Batch processing is a data-based transaction between a school and the SEVIS information database maintained by DHS. Batch processing is intended to help DSOs and ROs update and report their nonimmigrant student and exchange visitor information to SEVIS 187 See the section titled, ‘‘Estimating EOS Requests for F Nonimmigrants’’ for a discussion regarding the E-Verify data limitations. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 in a timely manner by automating the exchange of data. Rather than updating individual nonimmigrant student and exchange visitor information manually through SEVIS, batch processing allows schools and program sponsors to pool together and automatically process updates at the same time. The intended benefit of using batch processing is to streamline the SEVIS updating process. Instead of updating individual record information one-by-one through the SEVIS Portal, DSOs can update multiple records at once, automatically. DSOs are required to submit changes or updates to the nonimmigrant student and exchange visitor information to the SEVIS database system. When using batch processing to submit information to SEVIS, DSOs are required to comply with the proper documentation by submitting their updates as Extensible Markup Language (‘‘XML’’) documents. Using the XML format allows the SEVIS batch system to recognize the new or updated student data automatically. The changes are stored in the SEVIS batch system and an updated report is returned to the school for record keeping and verification. Schools can develop their own software or use thirdparty software suppliers to organize, update, and store their student data according to the SEVIS XML requirements.188 If finalized, the rule could lead to system upgrades by schools and program sponsors that currently use batch processing to interface with SEVIS. DHS acknowledges that there are many factors that affect the magnitude of system upgrade costs incurred by schools. For example, there may be onetime software development costs to implement an updated system capable of storing and converting a higher volume of nonimmigrant student and exchange visitor records. There also may be differences in the burden of the proposed rule according to the size of the nonimmigrant student and exchange visitor population at the school, the willingness of the school to maintain up-to-date system-wide software and hardware, and other factors. DHS requests comment on this potential impact, including the potential effect of the requirements on schools or sponsors and any data associated with the impact, such as the typical expenses for third-party software licenses or the 188 Immigration and Customs Enforcement SEVIS document, Application Program Interface Document for the Student and Exchange Visitor Information System Batch Interface Release 6.35, p. 1–5 (July 31, 2017), Retrieved from: https:// www.ice.gov/doclib/sevis/pdf/batch_api_6.35_ 073117_main.pdf. PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 potential impact of system-wide hardware or software updates. Preparing the SEVIS batch system to accept novel categories of information from schools and program sponsors could require new database management procedures. DHS acknowledges that accepting the updated XML files sent from DSOs has the potential to impact the functionality of its internal system. The SEVIS batch system may require system updates to maintain proper operations and system execution during the exchange between the user-system (the DSO’s system) and the SEVIS batch system. Because of the uncertainty of the scope and scale of the system upgrades needed as a result of this proposed rule, DHS has not monetized the cost of these potential, future information technology investments. English Language Training DHS is proposing a limitation of an aggregate 24-month period of stay, including breaks and an annual vacation, for language training students. Unlike degree programs, there are no nationally-recognized, standard completion requirements for language training programs, allowing students to exploit the current system and stay for an excessive period of time. The proposed 24-month period of stay would allow students a reasonable period of time to attain proficiency in the English language while mitigating the Department’s concerns of fraud with the program. DHS estimates that an average of 136,000 students participate in English language training programs annually.189 This analysis does not estimate a cost for this proposed provision as students enrolled in English language training would not be able to extend their fixed period of stay beyond two years and would therefore not incur the costs associated with applying for an extension to their period of admission. However, it is possible language training programs would experience reduced enrollment due to the proposed rule. Additionally, some schools may choose to change their curriculum to be covered in a 2-year time period, representing an additional burden on language training program providers. However, DHS expects this to affect relatively few programs. For all years of analysis, the majority of English 189 This estimate was developed using data from SEVIS. The SEVIS database was queried to extract data from FY 2016–2018. DHS used R Statistical Software to develop logic allowing DHS to identify individuals enrolled in language training programs. DHS provides the SQL code used to query the SEVIS database and the R code used to develop the logic for this analysis on the proposed rule’s docket. E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules language training students were enrolled in programs shorter than two years. Table 10 shows the percentage of students enrolled in English language training programs by program duration for FY 2016–2018. DHS seeks public comment on potential reduced enrollment, and associated impacts, 60575 resulting from the proposed limitations on language training. TABLE 10—PERCENT OF STUDENTS ENROLLED IN ENGLISH LANGUAGE TRAINING PROGRAMS BY LENGTH OF PROGRAM FY 2016 Percent of English Language Training Students with a Program Duration Less Than or Equal to 1 Year .................................................................................................................................. Percent of English Language Training Students with a Program Duration Greater Than 1 year and Less Than or Equal to 2 years ................................................................................. Percent of English Language Training Students with a Program Duration Greater Than 2 Years ........................................................................................................................................ FY 2017 FY 2018 58.4 58.9 58.0 27.7 25.8 26.3 13.8 15.3 15.7 Estimates derived from SEVIS data. Limitations on Changes in Educational Levels DHS is proposing a limitation on the number of program changes at the same or lower educational levels that students would be permitted to further strengthen the integrity of the F visa category. Specifically, DHS proposes to restrict the number of program changes between educational levels after completion of their first program by limiting F–1 students to two additional changes in programs at the same level and one additional transfer to a lower level. See proposed 8 CFR 214.2(f)(8)(ii)(B). This limitation may cause minor nonimmigrant enrollment reductions at schools, especially where F–1 nonimmigrants have changed between programs to remain in the United States for lengthy periods, and may also reduce options to change programs available to nonimmigrant students, including those who are properly maintaining their status. Limiting the number of changes between education levels could potentially result in a corresponding reduction in tuition revenue for the universities and a reduction in extension of stay filing fees for the Federal government from students that are otherwise in compliance with their status, fulfilling their academic requirements, but are interested in additional programs beyond the proposed limitation. Based on an analysis of three fiscal years of SEVIS data between FY 2016 and FY 2018, DHS is unable to quantify the impact on nonimmigrant student program changes between educational levels due to the lack of reliable transfer data. DHS seeks public comment on this potential impact. Pending EOS Applications for F Nonimmigrants The proposed rule also would establish certain adjustments for F nonimmigrants with pending EOS applications. Specifically, F nonimmigrants with a timely filed EOS application and whose EOS application is still pending after their admission period indicated on Form I–94 has expired would: • Receive an automatic extension of their F nonimmigrant status and, as applicable, of their on-campus employment authorization, off-campus employment authorization due to severe economic hardship, or STEM OPT employment authorization, as well as evidence of employment authorization, for up to 180 days or until the applicable applications are approved, whichever is earlier; • receive an automatic extension of their current authorization for oncampus and off-campus employment based on severe economic hardship resulting from emergent circumstances under 8 CFR 214.2(f)(5)(v), for up to 180 days or the end date of the Federal Register notice (FRN) announcing the suspension of certain requirements, whichever is earlier; • be prohibited from engaging in employment until their EOS applications and applications for employment authorization based on either an internship with an international organization, CPT, precompletion OPT, or post-completion OPT are approved. DHS acknowledges that these requirements would affect a cohort of F nonimmigrants. The total impact would depend on the number of F nonimmigrants with a timely filed EOS application and whose EOS application is still pending after their admission period indicated on Form I–94 has expired. DHS does not have data to estimate this sub-population. DHS believes that the incremental impact from these proposed requirements would not have a material impact on the results of this analysis, but requests public comment on these impacts. Total Cost Estimates Table 12 summarizes the impacts of the proposed rule. Total monetized costs of the proposed rule include DSO and RO rule familiarization and adaptation costs, EOS filing costs, and DSO/RO program extension request processing and SEVIS update costs. The 10-year discounted costs of the proposed rule in 2018 dollars would range from $1.7 billion to $2.0 billion (with 7 and 3 percent discount rates, respectively). The annualized costs of the proposed rule would range from $229.9 million to $237.7 million (with 3 and 7 percent discount rates, respectively). khammond on DSKJM1Z7X2PROD with PROPOSALS2 TABLE 12—COSTS OF THE PROPOSED RULE [2018$ millions] DSO/RO rule familiarization Fiscal year 2020 2021 2022 2023 ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 $93.3 0.0 0.0 0.0 EOS filing $134.7 134.7 170.8 170.8 E:\FR\FM\25SEP2.SGM 25SEP2 DSO/RO EOS processing $22.9 22.9 28.7 28.7 Total costs $250.9 157.6 199.4 199.4 60576 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules TABLE 12—COSTS OF THE PROPOSED RULE—Continued [2018$ millions] DSO/RO rule familiarization Fiscal year 2024 2025 2026 2027 2028 2029 DSO/RO EOS processing Total costs ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. 0.0 0.0 0.0 0.0 0.0 0.0 240.3 197.3 197.3 197.3 197.3 197.3 40.5 33.0 33.0 33.0 33.0 33.0 280.7 230.3 230.3 230.3 230.3 230.3 Undiscounted Total ................................................................................... Total with 3% discounting ........................................................................ Total with 7% discounting ........................................................................ Annualized, 3% discount rate, 10 years ................................................... Annualized, 7% discount rate, 10 years ................................................... 93.3 93.3 93.3 10.9 13.3 1,837.7 1,599.0 1,349.6 187.4 192.2 308.7 268.7 226.9 31.5 32.3 2,239.6 1,961.0 1,669.8 229.9 237.8 Transfers Should there be a reduction in the number of nonimmigrant students and exchange visitors applying for visas or for F or J status in the United States, then there would be an impact on the amount of fees collected by SEVP and DOS from nonimmigrant students and exchange visitors through visa applications and SEVIS fees. These fees are used to cover the operational costs associated with processing the applications and adjudications. Nonetheless, DHS anticipates that any impacts resulting from potential decreased nonimmigrant student enrollment and exchange visitor participation would be outweighed by the national security benefits anticipated as a result of the proposed requirements. Benefits khammond on DSKJM1Z7X2PROD with PROPOSALS2 EOS filing Among the unquantified benefits of the proposed rule is the opportunity for DHS to have additional opportunities to evaluate whether F, J, and I nonimmigrants are complying with their status requirements. Currently, the D/S framework does not require immigration officers to assess whether these nonimmigrants are complying with the terms and conditions of their stay, or whether they present a national security concern, unless some triggering event (such as an encounter in an enforcement setting, or a request for a benefit from USCIS) leads to a review of the nonimmigrant’s compliance. By implementing fixed periods of admission for these nonimmigrants, they will be required to submit an application for EOS or travel and apply for admission, which they are not currently required to do, in order to stay beyond their period of admission. This gives DHS additional opportunities to evaluate whether they are complying VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 with the requirements of their status, or if they present a national security concern. Requiring nonimmigrant academic students, exchange visitors, and representatives of foreign information media to request an additional period of admission directly with the Department would improve consistency of admissions between nonimmigrant categories, enable stronger oversight by immigration officers who would review the nonimmigrant’s request and assess whether the nonimmigrant had been complying with the terms and conditions of his or her status, enhance DHS’s ability to effectively enforce the statutory inadmissibility grounds related to unlawful presence, and deter aliens and entities from engaging in fraud and abuse within these nonimmigrant programs. Accordingly, these proposed changes would provide the Department with additional protections and mechanisms to exercise the oversight necessary to vigorously enforce our nation’s immigration laws, protect the integrity of these categories, and promptly detect national security concerns. DHS believes this proposed rule could result in reduced fraud, abuse, and national security risks for these nonimmigrant programs, but whether the rule will in fact result in a reduction will be borne out when the final rule is implemented. Compared to the current D/S framework in which a nonimmigrant’s substantive compliance might never be reviewed by DHS, DHS believes that the rule would be likely to result in more prompt detection of national security concerns or abuse by F, J and I nonimmigrants and could serve as a deterrent to those who would otherwise plan to engage in fraud or otherwise abuse these nonimmigrant classifications. The rule proposes additional oversight of these PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 individuals. Without this oversight, there is no data on prevalence of fraud and abuse by F, J, and I nonimmigrants and only limited data on these individuals’ impact on national security. 5. Alternatives Before arriving at a fixed admission period of up to either 2 or 4-years, DHS considered various options, including no action, a 1- and 3-year fixed admission period alternative, and a standard 1-year fixed admission period for all F and J nonimmigrants. No Action Alternative DHS first considered a ‘‘no action’’ alternative, under which F, J, and I nonimmigrants would continue being admitted for D/S. DHS determined that this alternative would not address the lack of pre-determined points for immigration officers to directly evaluate whether F, J and I nonimmigrants are maintaining their status, currently lacking because of the D/S framework. Additionally, DSOs and ROs would continue extending the program and therefore the nonimmigrant status of F and J aliens, instead of having immigration officers, who are government officials, make this assessment. As a result, there would continue to be challenges to the Department’s ability to effectively monitor and oversee these categories of nonimmigrants. With this option, the Department would continue to be concerned about the integrity of the programs and the potential for increased risk to national security. Alternative 1: 1- and 3-Year Fixed Admission Period An alternative that DHS considered was to admit F and J nonimmigrants to their program end date, not to exceed 3 years, or 1 year for nonimmigrants E:\FR\FM\25SEP2.SGM 25SEP2 60577 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules meeting certain conditions. While such an option would provide the Department with more frequent direct check in points with these nonimmigrants than provided by a 4year maximum period of admission, or 2 years for nonimmigrants meeting certain conditions, DHS was concerned it would be unduly burdensome on many F and J nonimmigrants. Under the alternative, DHS estimates that, on average, 494,000 nonimmigrants would file an EOS each year. By comparison, DHS estimates that under the proposed rule, on average, 301,000 nonimmigrants would file an EOS each year. By selecting the 2- and 4- year option in the proposed rule over the 1and 3-year alternative, DHS expects to receive 193,000 fewer EOS requests on average each year. DHS believes that a 4-year period best aligns with the normal progress for most programs, and a 3-year maximum period of stay would require almost every nonimmigrant enrolled in a 4-year program to apply for an EOS. A 3-year maximum also would result in greater administrative burdens on USCIS and CBP compared to the proposed 4-year maximum period of admission. USCIS would have to adjudicate extension of stay applications with more frequency if a 3year maximum period of stay is chosen over a 4-year period. Similarly, CBP would have to process applications for admission at POEs more frequently under the 3-year maximum period of stay alternative. Therefore, DHS believes an admission for the program end date, not to exceed 4 years (except for limited exceptions that would limit admissions to 2 years) is the best option and welcomes comments on this proposal. DHS calculated the costs for this alternative. DSO and RO rule familiarization and adaptation costs would remain the same under this alternative ($93.3 million during the first year after the rule takes effect). To calculate EOS filing costs, DHS multiplied the expected number of extension of stay requests under the 3year and 1-year fixed admission period alternative for F, I, and J nonimmigrants (Table 13) by the appropriate applicant unit costs (Table 7). TABLE 13—NUMBER OF EOS REQUESTS UNDER ALTERNATIVE #1 BY NONIMMIGRANT CATEGORY AND YEAR Early transition period End of transition Nonimmigrant category Full implementation period 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 F–1 ............................................................ F–2 ............................................................ J–1 ............................................................. J–2 ............................................................. I ................................................................. 180,787 21,118 0 0 1,197 298,835 35,376 40,776 18,896 1,197 298,835 35,376 40,776 18,896 1,197 537,228 56,917 50,418 25,004 1,197 381,596 44,094 45,526 21,978 1,197 381,596 44,094 45,526 21,978 1,197 381,596 44,094 45,526 21,978 1,197 381,596 44,094 45,526 21,978 1,197 381,596 44,094 45,526 21,978 1,197 381,596 44,094 45,526 21,978 1,197 Total ................................................... 203,102 395,080 395,080 670,764 494,391 494,391 494,391 494,391 494,391 494,391 Table 14 presents undiscounted EOS filing costs under the 3-year and 1-year fixed admission period alternative by nonimmigrant category and year, along with a breakdown of costs based on filing type (paper or electronic) and the use or nonuse of outside help to complete the form. EOS filing costs are lowest during the early transition period (2020–2022) and highest at the end of the transition period (2023) because of the variation in the estimated number of EOS requests (Table 13). TABLE 14—EOS FILING COSTS UNDER ALTERNATIVE #1, BY NONIMMIGRANT CATEGORY AND YEAR [Millions 2018$, undiscounted] Early transition period End of transition Number of EOS/cost 2020 2021 2022 2023 Full implementation period 2024 2025 2026 2027 2028 2029 F–1 F–1 EOS Requests ................................... Paper filing cost, no help 1 ........................ E-filing cost, no help 2 ............................... Paper filing cost, with help 3 ...................... E-filing cost, with help 4 ............................. 180,787 $45.8 $19.1 $46.4 $19.6 298,835 $75.7 $31.5 $76.6 $32.4 298,835 $75.7 $31.5 $76.6 $32.4 537,228 $136.1 $56.7 $137.8 $58.2 381,596 $96.7 $40.3 $97.9 $41.3 381,596 $96.7 $40.3 $97.9 $41.3 381,596 $96.7 $40.3 $97.9 $41.3 381,596 $96.7 $40.3 $97.9 $41.3 381,596 $96.7 $40.3 $97.9 $41.3 381,596 $96.7 $40.3 $97.9 $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 khammond on DSKJM1Z7X2PROD with PROPOSALS2 F–2 F–2 EOS Requests ................................... Paper filing cost, no help 5 ........................ E-filing cost, no help 6 ............................... 21,118 $2.0 $0.9 35,376 $3.3 $1.4 35,376 $3.3 $1.4 56,917 $5.4 $2.3 44,094 $4.2 $1.8 44,094 $4.2 $1.8 44,094 $4.2 $1.8 44,094 $4.2 $1.8 44,094 $4.2 $1.8 44,094 $4.2 $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 ................................... Paper filing cost, no help 1 ........................ E-filing cost, no help 2 ............................... Paper filing cost, with help 3 ...................... E-filing cost, with help 4 ............................. 0 $0.0 $0.0 $0.0 $0.0 40,776 $13.1 $5.2 $11.9 $4.9 40,776 $13.1 $5.2 $11.9 $4.9 50,418 $16.2 $6.5 $14.8 $6.1 45,526 $14.6 $5.8 $13.3 $5.5 45,526 $14.6 $5.8 $13.3 $5.5 45,526 $14.6 $5.8 $13.3 $5.5 45,526 $14.6 $5.8 $13.3 $5.5 45,526 $14.6 $5.8 $13.3 $5.5 45,526 $14.6 $5.8 $13.3 $5.5 J–1 Total ............................................ $0.0 $35.1 $35.1 $43.5 $39.2 $39.2 $39.2 $39.2 $39.2 $39.2 PO 00000 Frm 00053 Fmt 4701 VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 Sfmt 4702 E:\FR\FM\25SEP2.SGM 25SEP2 60578 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules TABLE 14—EOS FILING COSTS UNDER ALTERNATIVE #1, BY NONIMMIGRANT CATEGORY AND YEAR—Continued [Millions 2018$, undiscounted] Early transition period End of transition Number of EOS/cost 2020 2021 2022 2023 Full implementation period 2024 2025 2026 2027 2028 2029 J–2 J–2 EOS Requests ................................... Paper filing cost, no help 5 ........................ E-filing cost, no help 6 ............................... 0 $0.0 $0.0 18,896 $3.1 $1.3 18,896 $3.1 $1.3 25,004 $4.1 $1.8 21,978 $3.6 $1.6 21,978 $3.6 $1.6 21,978 $3.6 $1.6 21,978 $3.6 $1.6 21,978 $3.6 $1.6 21,978 $3.6 $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 ........................................ Paper filing cost, no help 1 ........................ E-filing cost, no help 2 ............................... Paper filing cost, with help 3 ...................... E-filing cost, with help 4 ............................. 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $0.1 1,197 $0.4 $0.2 $0.4 $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 Categories ..................................... $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 2 (EOS request estimate) × (unit cost for 3 (EOS request estimate) × (unit cost for 4 (EOS request estimate) × (unit cost for 5 (EOS request estimate) × (unit cost for 6 (EOS request estimate) × (unit cost for paper applicants not requiring outside help) × (0.455). electronic applicants not requiring outside help) × (0.195). paper applicants requiring outside help) × (0.245). electronic applicants requiring outside help) × (0.105). paper applicants not requiring outside help) × (0.7). electronic applicants requiring outside help) × (0.3). The total costs for EOS request filing under the 3-year and 1-year fixed period of admission alternative would be $3.1 billion undiscounted,190 or $2.7 billion and $2.2 billion at discount rates of 3 and 7 percent, respectively. The annualized cost of EOS request filing over the 10-year period would be $312.8 million and $320.0 million at discount rates of 3 and 7 percent, respectively. To estimate costs for DSOs and ROs to process program extension requests and update SEVIS under the 3-year and 1-year fixed period of admission alternative, DHS multiplied the expected number of F–1 and J–1 EOS requests under the 3-year and 1-year fixed admission period alternative (Table 13) by the expected DSO and RO time requirement per EOS request (3 hours) and the DSO and RO loaded wage rate ($28.93 × 1.46 loaded wage rate factor). Table 15 presents undiscounted DSO/ RO costs to process program extension requests and update SEVIS throughout the 2020–2029 study period under the 3-year and 1-year fixed admission period alternative. Similar to EOS filing costs, DSO/RO costs to process program extension requests and update SEVIS are lowest during the early transition period (2020–2022) and highest at the end of the transition period (2023) because of the variation in the estimated number of EOS requests (Table 13). TABLE 15—DSO/RO COSTS FOR PROCESSING PROGRAM EXTENSION REQUESTS BASED ON EOS REQUESTS AND UPDATING SEVIS UNDER ALTERNATIVE #1, BY YEAR [Millions 2018$, undiscounted] Early transition period Number of Extension Requests 1 .............. Costs 2 ....................................................... 1 Sum End of transition Full implementation period 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 180,787 $22.91 339,611 $43.03 339,611 $43.03 587,646 $74.46 427,122 $54.12 427,122 $54.12 427,122 $54.12 427,122 $54.12 427,122 $54.12 427,122 $54.12 of extension request estimates for F–1 students and J–1 exchange visitors. of extension requests) × (3 hours) × (DSO/RO wage rate of $28.93) × (loaded wage rate factor of 1.46). khammond on DSKJM1Z7X2PROD with PROPOSALS2 2 (Number The total cost estimate for DSOs and ROs to process program extension requests and update SEVIS under the 3year and 1-year fixed period of admission alternative would be $508.2 million undiscounted,191 or $441.7 million and $372.1 million at discount rates of 3 and 7 percent, respectively. The annualized cost of DSOs and ROs to update SEVIS over the 10-year period would be $51.8 million and $53.0 million at discount rates of 3 and 7 percent, respectively. Total monetized costs of the 3-year and 1-year fixed period of admission alternative include DSO and RO rule 190 The undiscounted total differs slightly from the sum of the years provided in Table 14 because of rounding in the table values. 191 The undiscounted total differs slightly from the sum of the years provided in Table 15 because of rounding in the table values. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 familiarization and adaptation costs, EOS filing costs, and DSO/RO costs for processing program extension requests and updating SEVIS. The 10-year discounted total costs of the 3-year and 1-year fixed period of admission alternative would be $3.2 billion with a 3 percent discount rate and $2.7 billion E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules with a 7 percent discount rate. The annualized total costs of the 3-year and 1-year fixed period of admission alternative would range from $375.5 million to $386.2 million (with 3 and 7 percent discount rates, respectively). The qualitative benefits of the 3-year and 1-year fixed period of admission alternative are same as the benefits of the 4-year and 2-year fixed period of admission alternative described in Section V.A.4. Other Alternatives DHS also considered a standard 1year fixed admission period for all F and J nonimmigrants. This option would treat all F and J nonimmigrants equally and would likely allow for easier implementation by USCIS and CBP by reducing the complexity of implementation and enforcement. Nevertheless, it could result in significant costs to nonimmigrants and the Department. There are more than 1 million F students who are enrolled in programs of study that last longer than 1 year. With a 1-year admission period, DHS expects that all of them would be required to apply for additional time. This would be a significant cost to students and exchange visitors, especially those who comply with the terms and conditions of their admission and those attending undergraduate programs that typically require 4 years to complete. Further, such a restrictive admission period could have unintended consequences. For example, if USCIS’s EOS processing time is significantly lengthened due to a 1-year admission period, cases presenting national security or fraud concerns would not necessarily be prioritized, thereby allowing a mala fide student or exchange visitor to remain in the United States until USCIS adjudicated his or her petition. DHS also considered whether the Department could utilize data from SEVIS to identify potentially problematic F and J nonimmigrants and require only this targeted subset of F and J nonimmigrants to complete an EOS. SEVIS information is used when aliens apply for a visa and admission to the U.S. as an F or J nonimmigrant, as well as to track and monitor their status. While this information is likely to be helpful in identifying aliens who should be subjected to further review, in some cases the information may not be sufficient for determining whether these nonimmigrants are engaging in fraudulent behavior or otherwise have fallen out of status. The data received when applying for an EOS provides additional information not contained in SEVIS that helps the Department effectively monitor and oversee F and J nonimmigrants. Further, an EOS provides a direct interaction with an immigration officer. As a potential remedy, the Department considered whether the SEVIS data could be used to classify a subset of nonimmigrants as higher risk of being a national security threat or committing fraud. The identified subset would then be required to complete an EOS as described in the proposal. Depending on how the Department targeted higher risk aliens, a smaller number of EOS’s would need to be completed as compared to the current proposal, thus lowering the burden on nonimmigrants, program sponsors, and the Department. The Department rejected this alternative in favor of moving all F and J nonimmigrants to a fixed period admission because SEVIS does not readily lend itself to this purpose, as it is used to gather information regarding technical compliance, and the data cannot replace the information that can be developed in the course of an adjudication, in which USCIS has the opportunity to ask questions via a request for evidence and, if necessary, conduct an interview. The Department also rejected this alternative due to the operational burden and challenges that would exist if some F and J nonimmigrants were admitted for D/S, but others for a fixed period of admission. In addition, by requiring all of the F and J nonimmigrants to be admitted for a fixed period, this allows for the opportunity for improved detection of fraud or abuse, as the 60579 Department has observed that abuse is not limited to one particular type of school or program. By fixing a date certain period of admission, all of these nonimmigrants are on notice as to the date their period of stay expires, and the Department will be in a position to provide greater oversight to help deter F and J nonimmigrants from engaging in fraud and abuse, including staying beyond that fixed date. All those who overstay would begin to accrue unlawful presence, generally the day after their period of stay expires, when admitted for a fixed period of admission. Lastly, the Department believes that a fixed period of admission for these populations may deter fraud, allow for earlier detection of national security concerns, and help reduce overstays which outweighs reducing the number of EOS requests that may be required. Comparison Table of Alternatives Table 16 compares the quantitative costs and qualitative benefits of the various alternatives. The ‘‘no action’’ alternative has zero costs but does not address how the D/S framework challenges the Department’s ability to effectively implement the statutory inadmissibility grounds of unlawful presence, undermines the integrity of these programs, and presents a risk to national security. The alternative with a 3-year maximum period of admission (or 1-year for nonimmigrants meeting certain conditions) would provide the Department with more frequent direct check in points on the nonimmigrants than a 4-year maximum period of admission, but DHS determined that the expense and workload implications of this option would be too burdensome on all stakeholders. DHS thus selected the proposed rule, which would impose lower costs while providing the Department with an effective mechanism to exercise the oversight necessary to vigorously enforce our nation’s immigration laws, protect the integrity of these categories, and promptly detect national security concerns. TABLE 16—SUMMARY OF ALTERNATIVES khammond on DSKJM1Z7X2PROD with PROPOSALS2 10-Year discounted totals (in $2018 million) Annualized costs Alternative Total costs Qualitative benefits 3-Percent Discount No action .......................................... Proposed Rule (4-year max admission). VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 $0.00 229.9 PO 00000 $0.00 1,961.0 Frm 00055 Fmt 4701 N/A. Evaluations at pre-determined intervals provide oversight necessary to enforce immigration laws; protect the integrity of F, J, and I nonimmigrant categories; and promptly detect national security concerns. Sfmt 4702 E:\FR\FM\25SEP2.SGM 25SEP2 60580 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules TABLE 16—SUMMARY OF ALTERNATIVES—Continued 10-Year discounted totals (in $2018 million) Annualized costs Alternative Alternative 1 (3-year max admission). Total costs 375.5 3,203.5 Qualitative benefits More frequent evaluations of nonimmigrants (at least one check-in for every F, J, and I nonimmigrant). 7-Percent Discount No action .......................................... Proposed Rule (4-year max admission). $0.00 237.8 $0.00 1,669.8 Alternative 1 (3-year max admission). 386.2 2,712.7 B. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term ‘‘small entities’’ comprises small business, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. DHS requests information and data from the public that would assist in better understanding the impact of this proposed rule on small entities. DHS also seeks input from the public on alternatives that will accomplish the same objectives and minimize the proposed rule’s economic impact on small entities. An initial regulatory flexibility analysis (IRFA) follows. khammond on DSKJM1Z7X2PROD with PROPOSALS2 1. A Description of the Reasons Why the Action by the Agency Is Being Considered DHS proposes to amend its regulations to eliminate the practice of admitting F academic students, I representatives of foreign information media, and J exchange visitors for the period of time that they are complying with the conditions of their nonimmigrant category (‘‘duration of status’’) and replace it with a fixed period of admission. The proposed rule would enable DHS to more effectively combat fraud and abuse, more accurately account for the accrual of unlawful presence grounds of inadmissibility, and better protect our nation’s immigration system. DHS’s objectives and legal authority for this proposed rule are further discussed throughout this NPRM. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 N/A. Evaluations at pre-determined intervals provide oversight necessary to enforce immigration laws; protect the integrity of F, J, and I nonimmigrant categories; and promptly detect national security concerns. More frequent evaluations of nonimmigrants (at least one check-in for every F, J, and I nonimmigrant). 2. A Succinct Statement of the Objectives of, and Legal Basis for, the Proposed Rule The objective of the proposed rule is to establish requirements that would help: (1) Ensure that the Department has an effective mechanism to periodically and directly assess whether these nonimmigrants are complying with the conditions of their classifications and U.S. immigration laws; and (2), obtain timely and accurate information about the activities they engage in during their temporary stay in the United States. If immigration officers discover a nonimmigrant in one of these categories has overstayed or otherwise violated his or her status, the proposed changes would ensure the Department is better able to carry out the unlawful presence provisions of the Immigration and Nationality Act (INA). DHS believes this greater oversight would deter F, J, or I nonimmigrants from engaging in fraud and abuse and strengthen the integrity of these nonimmigrant classifications. The legal basis for this proposed rule is grounded in the Secretary of Homeland Security’s broad authority to administer and enforce the nation’s immigration laws. Under Section 102 of the Homeland Security Act of 2002 (HSA) (Pub. L. 107–296, 116 Stat. 2135), 6 U.S.C. 112 and section 103(a)(1) and (3) of the INA, 8 U.S.C. 1103 (a)(1),(3), charge the Secretary with the administration and enforcement of the immigration and naturalization laws of the United States. Section 402(4) of the HSA, 6 U.S.C. 202(4), expressly authorizes the Secretary, consistent with 6 U.S.C. 236 (the DOS’s statutory authority concerning visa issuance and refusal), to establish and administer rules governing the granting of visas or other forms of permission to enter the United States to individuals who are not U.S. citizens or lawful permanent residents. See also 6 U.S.C. 271(a)(3), (b) (describing certain USCIS functions and PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 authorities, including USCIS’ authority to establish national immigration services policies and priorities and adjudicate applications) and 6 U.S.C. 252(a)(4) (describing ICE’s authority to collect information relating to foreign students and program participants and to use such information to carry out its enforcement functions). Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), and Title IV of the Homeland Security Act of 2002, Public Law 107–296, the Secretary of Homeland Security has the authority to prescribe, by regulation, the time and conditions of admission of all nonimmigrants. 3. A Description of and, Where Feasible, an Estimate of the Number of Small Entities to Which the Proposed Rule Will Apply The small entities to which the proposed rule would apply include all small SEVP-certified schools and J exchange visitor program sponsors. Employers of I foreign information media representatives would incur negligible costs from the proposed rule because the burden for filing an EOS request falls on the I nonimmigrant, not the employer. Employers of I foreign information media representatives are thus excluded from the small business impact analysis. SEVP-Certified Institutions Certified to Enroll Nonimmigrant Students As of 2018, there were a total of 6,754 SEVP-certified institutions (schools) authorized to enroll F nonimmigrant students that would be subject to the proposed rule because they are authorized to enroll F–1 nonimmigrants for a length of time greater than 1 year. Of these schools, 1,346 are public, 655 are for-profit, 4,183 are private nonprofit, and 570 are private without a for-profit/nonprofit specification.192 192 The number and type of schools were extracted from SEVIS, retrieved on September 5, E:\FR\FM\25SEP2.SGM 25SEP2 60581 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules DHS estimated the percentage of public schools that are small entities using a random sample of the 1,346 SEVP-certified public schools. DHS does not keep data on the size of the jurisdiction where each SEVP-certified school is located and, therefore, needed to do additional research to determine which schools are small. Due to the large number of SEVP-certified public schools and the level of effort associated with additional data collection, DHS assessed the jurisdiction size for a sample of 299 public schools selected randomly from the 1,346 SEVP-certified public schools. 193 Of these sampled schools, none were affiliated with a governmental jurisdiction with a population of less than 50,000 because most schools had a statewide jurisdiction. Of the 299 sampled public schools, DHS found that none of the public schools were small entities because they are in a governmental jurisdiction with a population greater than 50,000.194 Therefore, DHS estimates that all 1,346 public schools are not small entities.195 DHS conservatively assumes that all 4,183 private nonprofit schools are small entities because they are not dominant in their field. 196 DHS also assumes that all 570 schools that are private schools without a for-profit/ nonprofit designation are small entities. DHS requests comments from the public regarding these assumptions. To determine which of the remaining 655 private for-profit schools are considered a small entity, DHS sampled 243 for-profit schools.197 DHS referenced the Small Business Administration (SBA) size standards represented by business average annual receipts. Receipts are generally defined as a firm’s total income or gross income. SBA’s Table of Small Business Size Standards provides business size standards for all sections of the North American Industry Classification System (NAICS) for industries.198 DHS matched information provided by the schools in SEVIS regarding what programs of study it is engaged in with an appropriate six-digit NAICS industry description. NAICS is the standard classification used to categorize business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. economy. DHS found that the revenue of 163 of the 243 sampled for-profit schools fell below the SBA size standard of a small business according to their industry. Therefore, DHS estimates that 67 percent of all for-profit schools authorized to enroll F nonimmigrants fall below the SBA size standard of a small business according to their industry. As a result, DHS estimates that 439 of the 655 for-profit schools fall below the SBA size standard of a small business according and are considered small entities (67% × 655 = 438.85, rounded to 439). Table 17 shows a breakdown of the number of small forprofit SEVP-certified schools by industry. DHS estimated each private school’s annual receipts by multiplying the approximate annual cost of room, board, and tuition by the average annual number of total students based on data provided by the schools to SEVP. DHS acknowledges that this method of estimating receipts may be an incomplete account of a school’s income, which may also include contributions from private individuals or other endowments. Because these data reflect a snapshot of all SEVPcertified schools authorized to enroll F students in 2018, DHS acknowledges there may be changes in the school’s enrollment numbers and that a school’s estimated revenue may differ from actual revenue, which could include income generated from other sources. TABLE 17—FOR-PROFIT SEVP-CERTIFIED SCHOOLS BY INDUSTRY School industry NAICS codes Number of small schools Number of non-small schools Total SEVPcertified schools Percent small schools Elementary and Secondary Schools ....... Junior Colleges ........................................ Colleges, Universities and Professional Schools ................................................. Flight Training .......................................... Other Technical and Trade Schools ........ Fine Arts Schools ..................................... Language Schools ................................... All Other Miscellaneous Schools and Instruction ................................................ $12M 22M 611110 611210 44 1 19 2 63 3 70 33 30M 30M 17M 8M 12M 611310 611512 611519 611610 611630 46 1 4 2 64 24 1 3 2 29 70 2 7 4 93 66 50 57 50 69 12M 611699 1 0 1 100 Total .................................................. ........................ ........................ 163 80 243 67 1 U.S. khammond on DSKJM1Z7X2PROD with PROPOSALS2 Size standard Small Business Administration, Tables of Small Business Size Standards Matched to NAICS Codes. 2019. More information on SEVIS can be found at https://www.ice.gov/sevis/overview. 193 In determining the sample size, DHS assumed a 95 percent confidence level (z-score of 1.96); 5 percent margin of error (e=0.05); and a 50 percent population proportion of small schools (p=0.5). DHS used the equation S = ((z∧ 2*p(1 – p))/e∧2) / (1+((z∧2 * p(1 – p))/(Ne∧2))), where S is sample size, N is population size, and all other variables are as described in this footnote. The equation used to calculate the sample size can be found in Daniel WW (1999). Biostatistics: A Foundation for Analysis in the Health Sciences. 7th edition. New York: John Wiley & Sons. 194 Section 601(5) of the Regulatory Flexibility Act defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than 50,000. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 195 DHS is aware that this conclusion differs from that of the findings in the 2019 SEVP Fee Rule FRFA (See 84 FR 23930 (May 29, 2019)). For the SEVP Fee Rule FRFA and the D/S NPRM IRFA, DHS used census data to search for the jurisdiction where the school was located. In the D/S NPRM IRFA, high schools were excluded from this search as they would not be subject to the rule limitations. Most public colleges and universities are run at the state level, and all states have a population greater than 50,000. In the SEVP Fee Rule FRFA, public elementary, secondary, and high schools are combined with public universities. There are necessarily more public elementary, secondary, and high schools than there are public universities. Therefore, DHS expects to see differences between the two rules. 196 Section 601(4) of the Regulatory Flexibility Act defines the term ‘‘small organization’’ to mean any not-for-profit enterprise which is PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 independently owned and operated and is not dominant in its field. 197 In determining the sample size, DHS assumed a 95 percent confidence level (z-score of 1.96); 5 percent margin of error (e=0.05); and a 50 percent population proportion of small schools (p=0.5). DHS used the equation S = ((z∧ 2*p(1 – p))/e∧2) / (1+((z∧2 * p(1 – p))/(Ne∧2))), where S is sample size, N is population size, and all other variables are as described in this footnote. The equation used to calculate the sample size can be found in Daniel WW (1999). Biostatistics: A Foundation for Analysis in the Health Sciences. 7th edition. New York: John Wiley & Sons. 198 U.S. Small Business Administration, Tables of Small Business Size Standards Matched to NAICS Codes (Aug. 19, 2019), available at https:// www.sba.gov/document/support—table-sizestandards. E:\FR\FM\25SEP2.SGM 25SEP2 60582 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules 2 Number of schools derived from SEVIS data. Table 18 shows a summary by school type of the number of SEVP certified schools authorized to enroll F nonimmigrants and estimated small entities. DHS estimates that 5,192 schools meet the SBA definition of a small entity, or approximately 77 percent of the 6,754 schools included in this analysis. TABLE 18—SEVP-CERTIFIED SCHOOLS AUTHORIZED TO ENROLL F NONIMMIGRANTS BY SCHOOL TYPE Total number of schools Description Percent small schools Percent small schools Public schools .............................................................................................................................. Private, nonprofit schools ............................................................................................................ Private, unspecified schools ........................................................................................................ For profit schools ......................................................................................................................... 1,346 4,183 570 655 0 4,183 570 439 0 100 100 67 Total Number of SEVP-Certified Schools ............................................................................ 6,754 5,192 77 J Exchange Visitor Program Sponsors As of 2018, there were a total of 1,171 J exchange visitor program sponsors that would be subject to the proposed rule because they are authorized by DOS to sponsor J exchange visitor programs for a length of time greater than 1 year. Of these sponsors, 54 are government entities, 891 are schools, 23 are hospitals and related institutions, 141 are nonprofit institutions, and 62 are for-profit institutions. These sponsors issue DS–2019s according to certain designation codes that map to specific programs. Table 19 shows the type for each J exchange visitor program designation code. TABLE 19—DESCRIPTIONS OF J EXCHANGE VISITOR PROGRAM SPONSOR TYPES BY DESIGNATION CODE Designation code G–1 G–2 G–3 G–4 G–5 G–7 P–1 Program type ................... ................... ................... ................... ................... ................... ................... P–2 ................... P–3 ................... P–4 ................... Programs sponsored by the Department of State. Programs sponsored by the Agency for International Development (USAID). Other U.S. Federal agencies. International agencies or organizations in which the U.S. Government participates. Other national, State, or local government agencies. Federally funded national research and development center or a U.S. Federal laboratory. Educational institutions, e.g., schools, colleges, universities, seminaries, libraries, museums, and institutions devoted to scientific and technological research. Hospitals and related institutions. 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). For-profit organizations (business and industrial concerns). Government Entities DHS determined that all 54 government entities (G–1, G–2, G–3, G– 4, G–5, and G–7 program sponsors) are large entities because 30 are federal government entities and 24 are state or local government entities. Of the 24 state or local government entities, all represented jurisdictions with populations greater than 50,000. Therefore, DHS classified all 54 government entities as large entities. khammond on DSKJM1Z7X2PROD with PROPOSALS2 Educational Institutions DHS identified 891 schools that are J exchange visitor program sponsors. To identify which J exchange visitor program sponsors were small entities, DHS compared the 891 schools sponsoring J exchange visitor programs to the schools authorized to enroll F nonimmigrants. Of the 891 schools sponsoring J exchange visitor programs, 713 (80 percent) also enrolled F nonimmigrants. Of the 713 schools VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 sponsoring both F and J nonimmigrants, 357 (50 percent) of the schools are public schools and 357 (50 percent) are private, nonprofit schools. DHS assumes that the remaining 178 (20 percent) of schools sponsoring only J exchange visitors are also 50 percent public and 50 percent private, nonprofit schools. DHS thus estimates that there would be 446 public schools and 446 private, nonprofit schools (50 percent each of the 891 J-sponsor schools). Since all affected public schools have been found to be large entities and all affected private, nonprofit schools are assumed to be small entities, DHS estimates that 446 of the 891 J-sponsor schools are small entities. hospitals are small entities because they are not dominant in their fields. Only one hospital and related institution, a health maintenance organization medical health center with six-digit NAICS code 621491, sponsoring J exchange visitor programs is a for-profit institution that exceeded the threshold of $32.5 million annually in receipts for being a large entity. Hospitals and Related Institutions For-Profit Organizations DHS identified 23 hospitals and related institutions sponsoring J exchange visitor programs. Of these 23 hospitals, 22 are nonprofit. DHS assumes that all 22 private nonprofit DHS identified a total of 62 potentially affected for-profit organizations sponsoring J exchange visitor programs. In order to determine which of these for-profit entities may be PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 Nonprofit Organizations DHS conservatively assumes that all 141 nonprofits sponsoring J exchange visitor programs are small entities because they are not dominant in their field. DHS requests comments on these assumptions. E:\FR\FM\25SEP2.SGM 25SEP2 60583 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules affected by the proposed rule, DHS identified sponsors eligible to sponsor J exchange visitor programs for longer than one year, as those would be the only sponsors potentially affected by the rule. Sponsors for exchange visitors enrolled in short-term scholar, intern, specialist, secondary school student, college and university student, summer work travel, camp counselor, and au pair programs would not be affected by the proposed rule as the programs they offer are too short to be affected. Using these guidelines, DHS identified 61 organizations sponsoring J exchange visitor participants with a potential stay of greater than one year. Of these 61 organizations, DHS identified 32 potentially affected small entities. To identify these small entities, DHS referenced the SBA size standards represented by business average annual receipts. Receipts are generally defined as a firm’s total income or gross income. SBA’s Table of Small Business Size Standards is matched to the NAICS for industries.199 DHS matched information provided by the sponsors in SEVIS with an appropriate NAICS industry description. Total J Exchange Visitor Program Sponsors Overall, DHS identified 1,171 unique entities sponsoring J exchange visitor programs. Of these 1,171 entities, DHS identified 642 small entities that may be affected by the proposed rule. Table 20 shows a summary by sponsor type of the number of J exchange visitor program sponsors and estimated small entities. DHS requests comments on these assumptions, particularly with regard to J exchange visitor program nonprofit sponsors. TABLE 20—J EXCHANGE VISITOR PROGRAM SPONSORS BY TYPE AND SMALL ENTITY STATUS Total number of sponsors Description Number of affected small entities U.S. Department of State ........................................................................................................................................ U.S. Agency for International Development (USAID) ............................................................................................. Other U.S. Federal agencies ................................................................................................................................... International agencies or organizations 1 ................................................................................................................ Other national, state, or local government agencies .............................................................................................. National research and development center or laboratory 2 ..................................................................................... Educational institutions 3 .......................................................................................................................................... Hospitals and related institutions ............................................................................................................................. Nonprofit organizations, associations, etc.4 ............................................................................................................ For-profit organizations 5 .......................................................................................................................................... 1 1 26 1 24 1 891 23 141 62 0 0 0 0 0 0 447 22 141 32 Total .................................................................................................................................................................. 1,171 642 1 International agencies or organizations in which the U.S. Government participates. 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 technological 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). 2 Federally employment authorizations. Therefore, the potential impacts of these requirements on small entities is not quantitatively evaluated in this IRFA. The proposed rule would increase costs for SEVP-certified schools and J exchange visitor program sponsors because DSOs and ROs would have to spend approximately 40 hours for rule familiarization and adaptation (in the first year only; 8 hours to complete rule familiarization training, 16 hours to create and modify training materials, and 16 hours to adapt to the proposed rule through system wide briefings and systemic changes) and approximately 3 hours per F–1/J–1 program extension request to review the Form I–539 completed by the F–1/J–1 nonimmigrant (1 hour), update the SEVIS record and track program extension requests (1 hour), and advise the F–1/J–1 nonimmigrant about the extension process and the requirements to file an EOS with USCIS (1 hour annually). DHS estimates the annual impact to small SEVP-certified schools and J exchange visitor program sponsors based on the cost of compliance as represented as a percentage of their annual revenue. This analysis examines the impact that the proposed rule would have on small SEVP-certified schools and J exchange visitor program sponsors. The IRFA evaluates the impacts that have been quantitatively estimated in the regulatory impact analysis. As discussed in the regulatory impact analysis, there are other proposed rule requirements that could impact small SEVP-certified schools and J exchange visitor program sponsors. The regulatory impact analysis qualitatively discusses proposed requirements affecting English language training programs; changes in educational levels; and extensions to 199 U.S. Small Business Administration, Tables of Small Business Size Standards Matched to NAICS Codes (Aug. 19, 2019), available at https:// www.sba.gov/sites/default/files/2019-08/ SBA%20Table%20of%20Size%20Standards_ Effective%20Aug%2019%2C%202019_Rev.pdf. khammond on DSKJM1Z7X2PROD with PROPOSALS2 4. A Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Rule, Including an Estimate of the Classes of Small Entities That Will Be Subject to the Requirement and the Types of Professional Skills Necessary for Preparation of the Report or Record VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 SEVP-Certified Schools Authorized to Enroll F Nonimmigrants As shown in Table18, DHS estimates that 5,192 SEVP-certified schools that are authorized to enroll F nonimmigrants meet the SBA definition of a small entity, including 4,183 private, nonprofit schools; 570 private schools without a for-profit/nonprofit designation; and 439 for-profit schools. DHS determined a SEVP-certified school’s annual revenue by multiplying the average cost per F student by average annual enrollment. DHS acknowledges that this method to estimate revenue may be an incomplete account of a SEVP-certified school’s revenue, which may also include contributions from private individuals or other endowments. E:\FR\FM\25SEP2.SGM 25SEP2 60584 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules DHS examined all 5,192 small SEVPcertified schools authorized to enroll F nonimmigrants to estimate the impact of estimated DSO rule familiarization and adaptation costs in the first year of the rule. For this analysis, DHS assumed that each small SEVP-certified school has three DSOs that will incur rule familiarization and adaptation costs. 200 For each DSO, rule familiarization will cost $1,690 (40 hours × $28.93 × 1.46 loaded wage rate factor). in the first year after the rule takes effect. 201 DHS calculated the impact of rule familiarization and adaptation on SEVP- certified schools by dividing the rule familiarization and adaptation costs for three DSOs ($5,069) by each school’s estimated annual revenue. For the private, for-profit schools, DHS assessed impacts of the rule familiarization and adaptation costs on the sample of forprofit schools and applied the percentage of schools falling within each impact category to the full universe of small for-profit schools. Table 21 shows the number of small schools within the range of impact to each school’s estimated annual revenue. Of the 5,192 small schools, 5,007, or 96.4 percent, would experience an impact less than or equal to 1 percent of their estimated annual revenue as a result of the rule familiarization and adaptation costs. DHS estimates 118 small schools (2.3 percent) would realize an impact between 1 percent and 2 percent of their estimated annual revenue, 29 small schools (0.6 percent) would realize an impact between 2 percent and 3 percent, and 38 small schools (0.7 percent) would realize an impact greater than or equal to 3 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 revenue Type of school <1% 1%–2% Total ≥3% 2%–3% Private, nonprofit schools .................................................... Private, unspecified schools ................................................ For-profit schools 2 ............................................................... 4,048 541 418 81 21 16 21 3 5 33 5 0 4,183 570 439 Total Small Schools ...................................................... % of Small Schools ...................................................... 5,007 96.4% 118 2.3% 29 0.6% 38 0.7% 5,192 100.0% 1 Values based on the assumption that small entities will have three DSOs that will incur rule familiarization and adaption costs. 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. 2 DHS DHS also examined all 5,192 small SEVP-certified schools to estimate the impact of annual DSO costs for processing program extension requests and updating SEVIS. For this analysis, DHS estimated the number of program extension requests that each school is expected to process by dividing the estimated annual number of F–1 nonimmigrant EOS requests from the full implementation period (249,017; see Table 6) by the total number of SEVP-certified schools, small and large (6,754). This methodology produced an estimated average of 37 annual EOS requests for each school. The DSO cost per EOS request is $127 (3 hours × $28.93 × 1.46 loaded wage rate factor).202 DHS calculates the impact by dividing the processing costs for 37 EOS requests ($4,670) by each school’s estimated annual revenue. For the forprofit schools, DHS assessed impacts of EOS costs on the sample of for-profit schools and applied the percentage of schools falling within each impact category to the full universe of small forprofit schools. Of the 5,192 small schools, 5,025, or 96.8 percent, would experience an impact less than or equal to 1 percent of their estimated annual revenue. DHS estimates 108 small schools (2.1 percent) would realize an impact between 1 percent and 2 percent of their estimated annual revenue, 27 small schools (0.5 percent) would realize an impact between 2 percent and 3 percent, and 32 small schools (0.6 percent) would realize an impact greater than or equal to 3 percent. Table 22 shows the number of small schools within the range of impact to each school’s 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 khammond on DSKJM1Z7X2PROD with PROPOSALS2 <1% 1%–2% Total ≥ 3% 2%–3% Private, nonprofit schools .................................................... Private, unspecified schools ................................................ Por-profit schools 2 ............................................................... 4,062 545 418 75 17 16 17 5 5 29 3 0 4,183 570 439 Total Small Schools ...................................................... % Small Schools ........................................................... 5,025 96.8% 108 2.1% 27 0.5% 32 0.6% 5,192 100.0% 1 Values based on the assumption that each small entity will process 37 EOS requests annually. assessed impacts of the EOS 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. 2 DHS 200 DHS estimated costs assuming that each small SEVP-certified school has one, three, and five DSOs. DHS presented the estimates for three DSOs as a midpoint value. The actual number of DSOs may vary by small SEVP-certified school. DHS VerDate Sep<11>2014 20:05 Sep 24, 2020 Jkt 250001 welcomes public comment on the average number of DSOs at small SEVP-certified schools. 201 See Section V.A of the NPRM for a detailed discussion of DSO and RO Rule Familiarization and Adaptation Costs. PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 202 See Section V.A of the NPRM for a detailed discussion of DSO and RO Rule Familiarization and Adaptation Costs. E:\FR\FM\25SEP2.SGM 25SEP2 60585 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules DHS recognizes that the 37 annual EOS requests assumption for each SEVP-certified school may overestimate the costs for schools with low average annual enrollment. As shown in Table 23, approximately 72 percent of the small schools identified as having EOS processing cost impacts greater than or equal to 3 percent of annual school revenue have 37 or fewer students enrolled on average, implying that the analysis may be overestimating the number of schools with impacts greater than 3 percent.203 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 with enrollment at or under 37 students and impacts ≥3% Number of schools with impacts ≥3% Private, nonprofit schools .................................................................................... Private, unspecified schools ................................................................................ For profit schools 2 ............................................................................................... 20 3 0 29 3 0 69.0% 100.0% ................................ Total Small Schools ...................................................................................... 23 32 71.9% Type of school Percent of schools with impacts ≥3% and enrollment at or under 37 students 1 Impact percentage based on the assumption that each small entity will process 37 EOS requests annually. assessed impacts of the EOS 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. 2 DHS J Exchange Visitor Program Sponsors As shown in Table 20, 642 J exchange visitor program sponsors meet the SBA definition of a small entity. Because reliable financial information is not available for all J sponsors, DHS did not assess impacts of the proposed rule for each small J exchange visitor program sponsor. Instead, DHS determined the minimum earnings required for proposed rule costs to equal 1 percent, 2 percent, and 3 percent of J sponsor revenue. For this analysis, DHS assumed that each small J exchange visitor program sponsor will have three ROs that will incur rule familiarization and adaptation costs in the first year.204 To assess the annual impacts of costs for processing program extension requests and updating SEVIS, DHS estimated the number of program extension requests that each J exchange visitor program sponsor is expected to process by dividing the estimated annual number of J–1 nonimmigrant EOS requests from the full implementation period (11,565; see Table 6) by the total number of J exchange visitor program sponsors, small and large (1,171). This methodology produced an estimated average of 10 annual EOS requests for each J sponsor. DHS recognizes that small entities will likely process fewer EOS requests than the average but does not have more detailed data on the EOS requests by entity. DHS also recognizes potential non-quantifiable risks of reduced enrollment in J exchange visitor programs that can lead to revenue reductions. Table 24 provides the minimum annual earnings required for proposed rule costs to equal 1 percent, 2 percent, and 3 percent of J exchange visitor program visitor sponsor revenue. The impact of the RO rule familiarization and adaptation costs of the proposed rule ($5,069) will not exceed 1 percent of sponsor earnings if earnings are at least $506,854. If J exchange visitor program sponsors earnings are at least $168,951 or $253,427, the rule familiarization and adaption costs of the proposed rule will not exceed 3 percent or 2 percent, respectively, of sponsor earnings. DHS anticipates that the majority of small J sponsors will have earnings that exceed these thresholds. DHS requests comments on the availability of earnings data for J exchange visitor program sponsors in order to refine this analysis. The impact of the costs for processing program extension requests and updating SEVIS (10 EOS requests; $1,251) will not exceed 1 percent of sponsor earnings if earnings are at least $125,144. If J exchange visitor program sponsor earnings are at least $41,715 or $62,572, the EOS request processing costs of the proposed rule will not exceed 3 percent or 2 percent, respectively, of sponsor earnings. DHS anticipates that the majority of small J sponsors will have earnings that exceed these thresholds. DHS requests comments on the availability of earnings data for J exchange visitor program sponsors in order to refine this analysis. TABLE 24—MINIMUM J EXCHANGE VISITOR PROGRAM SPONSOR EARNINGS FOR PROPOSED RULE COSTS TO EQUAL 1 PERCENT, 2 PERCENT, OR 3 PERCENT OF SPONSOR REVENUE (2018$) Percent of annual revenue Minimum annual earnings khammond on DSKJM1Z7X2PROD with PROPOSALS2 Rule Familiarization and Adaptation Costs (first year only) 1 ...................................................... EOS Costs (annual) 2 .................................................................................................................. 1 Values 2 Values 1% 2% 3% $506,854 125,144 $253,427 62,572 $168,951 41,715 based on the assumption that small entities will have 3 ROs that will incur rule familiarization/adaptation costs. based on the assumption that each small entity will process 10 EOS requests annually. 203 Schools with 37 or fewer students include religious institutions, Montessori schools, schools for students with disabilities, specialty graduate schools, and boarding schools. VerDate Sep<11>2014 20:05 Sep 24, 2020 Jkt 250001 204 DHS estimated costs assuming that each small J exchange visitor program sponsor has one, three, and five ROs. DHS presented the estimates for three ROs as a midpoint value. The actual number of ROs PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 may vary by small J exchange visitor program sponsor. DHS welcomes public comment on the average number of ROs at small J exchange visitor program sponsors. E:\FR\FM\25SEP2.SGM 25SEP2 60586 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules 5. An Identification, to the Extent Practicable, of All Relevant Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule Department of State Exchange Visitor Program regulations would need to be updated to inform the sponsor community of this new EOS procedure. The regulations at 22 CFR part 62.43 describe the procedures for J–1 program extensions. These regulations may need to be updated to reference the changes made in this proposed rule, whereby a J–1 must file for an extension of stay with USCIS in order to remain in the United States beyond the status expiration date on their I–94, or depart the United States and seek admission as a J–1 nonimmigrant at a port of entry, in addition to securing a program extension from the Responsible Officer or from the Department of State, as required by the current regulations.’’ khammond on DSKJM1Z7X2PROD with PROPOSALS2 6. A Description of Any Significant Alternatives to the Proposed Rule Which Accomplish the Stated Objectives of Applicable Statutes and Minimize Any Significant Economic Impact of the Proposed Rule on Small Entities DHS first considered a ‘‘no action’’ alternative, under which DHS would continue admitting nonimmigrants with F, I, and J status without an end date for their authorized periods of stay. DHS determined that this alternative would not adequately provide immigration officers with an opportunity to evaluate an alien’s maintenance of status at predetermined points, nor would it enable immigration officers an opportunity to assess whether an alien is accruing unlawful presence, and the ‘no action’ alternative would do nothing to address the fraud and abuse currently present in these categories. Another alternative DHS considered was to admit F and J nonimmigrants to their program end date, not to exceed 3 years (or 1 year for nonimmigrants meeting certain conditions). While such an option would provide the Department with more frequent direct evaluations of nonimmigrants than a 4year maximum period of admission (or 2-year maximum for nonimmigrants meeting certain conditions), DHS was concerned it would be unduly burdensome on many F and J nonimmigrants. DHS believes that a period of admission for up to 4 years best aligns with the normal progress for most programs. A 3-year maximum period of stay would require almost every nonimmigrant enrolled in a 4-year program to apply for an EOS and would result in greater administrative burdens VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 on USCIS and CBP compared to the proposed 4-year maximum period of admission. Specifically, USCIS would have to adjudicate extension of stay applications with more frequency if a 3year maximum period of stay is chosen over a 4-year one. Similarly, CBP would have to process applications for admission at POEs more frequently under the 3-year maximum period of stay alternative. Therefore, DHS believes an admission for the program end date, not to exceed 4 years (except for limited exceptions that would limit admissions to 2 years) is the best option and welcomes comments on this proposal. DHS also considered a standard 1year fixed admission period for all F and J nonimmigrants. This option would treat all nonimmigrants with F and J status equally and would likely allow for easier implementation by CBP at the POEs. Nevertheless, it could result in significant costs to nonimmigrants and the Department. There are more than 1 million F students who are enrolled in programs of study that last longer than 1 year. With a 1-year admission period, DHS expects that all of them would be required to apply for additional time. This could be a significant cost to students and exchange visitors, especially those who comply with the terms and conditions of their admission and those attending undergraduate programs that typically require 4 years to complete. Further, such a short admission period could have unintended consequences. If USCIS’s EOS processing time is significantly lengthened due to a 1-year admission period, cases presenting national security or fraud concerns would not necessarily be prioritized, thereby allowing a mala fide student or exchange visitor to remain in the United States until USCIS adjudicated his or her petition. DHS requests comment on the impacts on small entities. Members of the public should submit a comment, as described in this proposed rule under Public Participation, if they think that their business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it. It would be helpful if commenters provide DHS with as much information as possible as to why this proposed rule would create an impact on small businesses. Commenters should also describe any recommended alternative measures that would mitigate the impact on small businesses. PO 00000 Frm 00062 Fmt 4701 Sfmt 4702 C. Small Business Regulatory Enforcement Fairness Act of 1996 Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104– 121, we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult ICE using the contact information provided in the FOR FURTHER INFORMATION CONTACT section above. D. Congressional Review Act This proposed rule is a major rule as defined by 5 U.S.C. 804, also known as the ‘‘Congressional Review Act,’’ as enacted in section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104– 121, 110 Stat. 847, 868 et seq. Accordingly, this rule, if enacted as a final rule, would be effective at least 60 days after the date on which Congress receives a report submitted by DHS under the Congressional Review Act, or 60 days after the final rule’s publication, whichever is later. E. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any year. Though this proposed rule would not result in such an expenditure, DHS does discuss the effects of this rule elsewhere in this preamble. F. Paperwork Reduction Act—Collection of Information Under the Paperwork Reduction Act of 1995, Public Law 104–13, 109 Stat. 163 (1995) (PRA), all Departments are required to submit to OMB, for review and approval, any reporting or recordkeeping requirements inherent in a rule. DHS, USCIS and ICE are revising one information collection and proposing non-substantive edits to one information collection in association with this rulemaking action: I–539 and I–539A DHS, USCIS and ICE invite the general public and other federal agencies to comment on the impact to the proposed collection of information. E:\FR\FM\25SEP2.SGM 25SEP2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS2 In accordance with the PRA, the information collection notice is published in the Federal Register to obtain comments regarding the proposed edits to the information collection instrument. Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615–0003 in the body of the letter and the agency name. To avoid duplicate submissions, please use only one of the methods under the ADDRESSES and Public Participation section of this rule to submit comments. Comments on this information collection should address one or more of the following four points: (1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency’s estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Overview of Information Collection (1) Type of Information Collection: Revision of a Currently Approved Collection. (2) Title of the Form/Collection: Application to Extend/Change Nonimmigrant Status. (3) Agency form number, if any, and the applicable component of the DHS sponsoring the collection: I–539 and I– 539A; USCIS. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. This form will be used for nonimmigrants to apply for an extension of stay, for a change to another nonimmigrant classification, or for obtaining V nonimmigrant classification. (5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: The estimated total number of respondents for the information collection Form I–539 (paper) is 318,421 and the estimated hour burden per VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 response is 2.38 hours; the estimated total number of respondents for the information collection Form I–539 (efile) is 136,466 and the estimated hour burden per response is 1.083 hours; the estimated total number of respondents for the information collection Supplement A is 83,712 and the estimated hour burden per response is .50 hours; the estimated total number of respondents for biometrics processing is 538,599 and the estimated hour burden per response is 1.17 hours. (6) An estimate of the total public burden (in hours) associated with the collection: The total estimated annual hour burden associated with this collection of information in hours is 1,577,242. (7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $105,461,002. USCIS Form I–765 and I–756 WS Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501–12, DHS must submit to OMB, for review and approval, any reporting requirements inherent in a rule unless they are exempt. Although this rule does not impose any new reporting or recordkeeping requirements under the PRA for this information collection, this rule will require non-substantive edits to USCIS Form I–765, Application for Employment Authorization. Accordingly, USCIS has submitted a Paperwork Reduction Act Change Worksheet, Form OMB 83–C, and amended information collection instruments to OMB for review and approval in accordance with the PRA. G. Executive Order 13132: Federalism This proposed rule would not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. DHS does not expect that this proposed rule would impose substantial direct compliance costs on State and local governments, or preempt State law even though schools, colleges, and universities may choose to enroll in E-Verify to permit their students a longer initial period of admission. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. PO 00000 Frm 00063 Fmt 4701 Sfmt 4702 60587 H. Executive Order 12988: Civil Justice Reform This proposed rule meets applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction. I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use DHS has analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. DHS has determined that it is not a ‘‘significant energy action’’ under that order because it is a ‘‘significant regulatory action’’ under Executive Order 12866 but is not likely to have a significant adverse effect on the supply, distribution, or use of energy. J. National Environmental Policy Act (NEPA) DHS Management Directive (MD) 023–01 Rev. 01 and Instruction Manual (IM) 023–01–001–01 Rev. 01 establish the policy and procedures that DHS and its Components use to implement the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321–4375, and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 through 1508. The CEQ regulations enable federal agencies to establish categories of actions that do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. 40 CFR 1508.4. DHS’s Categorical Exclusions are listed in IM 023–01–001–01 Rev. 01, Appendix A, Table 1. For an action to be categorically excluded, the action must satisfy each of the following three conditions: 1. The entire action clearly fits within one or more of the Categorical Exclusions; 2. The action is not a piece of a larger action; and 3. No extraordinary circumstances exist that create the potential for a significant environmental effect. IM 023–01–001–01 Rev. 01 sec. V(B)(2)(a)– (c). If the proposed action does not clearly meet all three conditions, DHS or the Component prepares an Environmental E:\FR\FM\25SEP2.SGM 25SEP2 60588 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules Assessment or Environmental Impact Statement, according to CEQ requirements and MD 023–01 Rev. 01 and IM 023–01–001–01 Rev. 01. DHS proposes to amend its regulations to eliminate the practice of admitting F–1 nonimmigrant students, I nonimmigrant representatives of information media, and J–1 exchange visitors (and F–2/J–2 family members) for D/S. The proposed rule would provide for nonimmigrants seeking entry under F, I, or J visas to be admitted for the period required to complete their academic program, foreign information media employment, or exchange visitor program, not to exceed the periods of time defined in this proposed rule. The proposed rule would also require nonimmigrants seeking to continue their studies, foreign information media employment, or exchange visitor program beyond the admission period granted at entry to apply for extension. DHS has analyzed this proposed rule under MD 023–01 Rev. 01 and IM 023–01–001–01 Rev. 01. DHS has determined that this proposed rulemaking action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule completely fits within the Categorical Exclusion found in IM 023– 01–001–01 Rev. 01, Appendix A, Table 1, number A3(d): ‘‘Promulgation of rules. that interpret or amend an existing regulation without changing its environmental effect.’’ This proposed rule is not part of a larger action. This proposed rule presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this proposed rule is categorically excluded from further NEPA review. DHS seeks any comments or information that may lead to the discovery of any significant environmental effects from this proposed rule. khammond on DSKJM1Z7X2PROD with PROPOSALS2 K. Executive Order 13175: Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 L. Executive Order 12630: Governmental Actions and Interference With Constitutionally Protected Property Rights This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. M. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045 requires agencies to consider the impacts of environmental health risk or safety risk that may disproportionately affect children. DHS has reviewed this proposed rule and determined that this rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Therefore, DHS has not prepared a statement under this executive order. N. National Technology Transfer and Advancement Act The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. O. Family Assessment DHS has determined that this proposed action will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105–277, 112 Stat. 2681). P. Signature The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, is PO 00000 Frm 00064 Fmt 4701 Sfmt 4702 delegating the authority to electronically sign this document to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the Federal Register. List of Subjects 8 CFR Part 214 Administrative practice and procedure, Aliens, Cultural exchange programs, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students. 8 CFR Part 248 Administrative practice and procedure, Aliens, Reporting and recordkeeping requirements. 8 CFR Part 274a Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements. Regulatory Amendments Accordingly, DHS proposes to amend parts 214, 248, and 274a of chapter I, subchapter B, of title 8 of the Code of Federal Regulations as follows: PART 214—NONIMMIGRANT CLASSES 1. The authority citation for part 214 continues to read as follows: ■ Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301–1305, 1356, and 1372; section 643, Pub. L. 104–208, 110 Stat. 3009–708; Pub. L. 106–386, 114 Stat. 1477– 1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115–218. 2. Section 214.1 is amended by: a. Adding paragraph (a)(4); b. Revising paragraphs (b) introductory text, (b)(1) introductory text, (b)(2) introductory text, and (b)(3) introductory text; ■ c. Removing paragraph (b)(4); ■ d. Revising paragraphs (c)(2), (c)(3)(v), and (c)(5); and ■ e. Adding paragraphs (c)(6) and (m). The additions and revisions read as follows: ■ ■ ■ § 214.1 Requirements for admission, extension, and maintenance of status. (a) * * * (4) Requirements for admission of aliens under section 101(a)(15)(F) and (J). Aliens applying for admission as F or J nonimmigrants after [EFFECTIVE DATE OF FINAL RULE] will be E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules inspected and may be admitted into the United States, if in possession of a valid Form I–20 or Form DS–2019, or successor form, and otherwise eligible, and subject to the following: (i) Aliens applying for admission as F nonimmigrants. (A) Aliens seeking admission to the United States, including those seeking admission with a properly filed, pending application for an extension of stay as an F nonimmigrant after a previously authorized period of admission as an F nonimmigrant expired, may be admitted for the period specified in 8 CFR 214.2(f)(5); (B) Aliens seeking admission to the United States as an F nonimmigrant with a properly filed pending application for extension of stay as an F nonimmigrant may, if they have time remaining on the period of stay authorized prior to departure, be admitted for a period up to the unexpired period of stay authorized prior to the alien’s departure, plus an additional 30 days as provided in 8 CFR 214.2(f)(5)(iv), subject to the requirements in paragraph (c)(6) of this section, or if the alien seeks admission with a Form I–20 for a program end date beyond their previously authorized period of admission, the alien may be admitted for the period specified in 8 CFR 214.2(f)(5), subject to the requirements in paragraph (c)(6) of this section; (C) Aliens seeking admission to the United States as an F nonimmigrant with an approved extension of stay for F nonimmigrant status may be admitted until the expiration of the approved extension of stay, plus an additional 30 days, as provided in 8 CFR 214.2(f)(5)(iv); (D) Post-completion Optional Practical Training (OPT) and Science Technology Engineering and Mathematics OPT extension (STEM OPT extension). Aliens seeking admission to the United States as an F nonimmigrant to pursue postcompletion OPT or a STEM OPT extension may be admitted until the end date of the approved employment authorization for post-completion OPT or STEM OPT, or if the Application for Employment Authorization, Form I–765 or successor form for post-completion or STEM OPT is still pending with USCIS, as evidenced by a notice issued by USCIS indicating receipt of such application, until the Designated School Official’s recommended employment end date for post-completion or STEM OPT specified on the Form I–20, subject to the requirements in paragraphs (c)(6) of this section and 8 CFR VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 274a.12(b)(6)(iv), plus a 30-day period as provided in 8 CFR 214.2(f)(5)(iv). (ii) Aliens applying for admission as J nonimmigrants. (A) Aliens seeking admission to the United States, including those seeking admission with a properly filed, pending application for an extension of stay as a J nonimmigrant after a previously authorized period of admission as a J nonimmigrant expired, may be admitted for the period specified in 8 CFR 214.2(j)(1); (B) Aliens seeking admission to the United States as a J nonimmigrant with a properly filed pending extension of stay as a J nonimmigrant may, if they have time remaining on the period of stay authorized prior to departure, be admitted for a period up to the unexpired period of stay authorized prior to the alien’s departure, plus an additional 30 days as provided in 8 CFR 214.2(j)(1)(ii)(C), subject to the requirements in paragraph (c)(6) of this section, provided that if the alien seeks admission with a Form DS–2019 for a program end date beyond his or her previously authorized period of admission, the alien may be admitted for the period specified in 8 CFR 214.2(j)(1), subject to the requirements in paragraph (c)(6) of this section; (C) Aliens seeking admission to the United States as a J nonimmigrant with an approved extension of stay in J nonimmigrant status may be admitted up to the expiration of the approved extension of stay, plus an additional 30 days as provided in 8 CFR 214.2(j)(1)(ii)(C). (b) Readmission of nonimmigrants under section 101(a)(15) (F), (J), or (M) whose visa validity is considered automatically extended] to complete unexpired periods of previous admission or extension of stay— (1) Section 101(a)(15)(F). The inspecting immigration officer may readmit up to the unexpired period of stay authorized prior to the alien’s departure, any nonimmigrant alien whose nonimmigrant visa validity is considered automatically extended pursuant to 22 CFR 41.112(d) and who is applying for admission under section 101(a)(15)(F) of the Act, if the alien: * * * * * (2) Section 101(a)(15)(J). The inspecting immigration officer may readmit up to the unexpired period of stay authorized prior to the alien’s departure, any nonimmigrant alien whose nonimmigrant visa validity is considered automatically extended pursuant to 22 CFR 41.112(d) and who is applying for admission under section 101(a)(15)(J) of the Act, if the alien: * * * * * PO 00000 Frm 00065 Fmt 4701 Sfmt 4702 60589 (3) Section 101(a)(15)(M). The inspecting immigration officer may readmit for the unexpired period of stay authorized prior to the alien’s departure, any nonimmigrant alien whose nonimmigrant visa validity is considered automatically extended pursuant to 22 CFR 41.112(d) and who is applying for admission under section 101(a)(15)(M) of the Act, if the alien: * * * * * (c) * * * (2) Filing for an extension of stay. Any other nonimmigrant who seeks to extend his or her stay beyond the currently authorized period of admission, must apply for an extension of stay by filing an extension request in the manner and on the form prescribed by USCIS, together with the required fees and all initial evidence specified in the applicable provisions of 8 CFR 214.2, and in the form instructions, including the submission of any biometrics required by 8 CFR 103.16. More than one person may be included in an application if the co-applicants are all members of a single-family group and either all hold the same nonimmigrant status or one holds a nonimmigrant status and the other coapplicants are his or her spouse and/or children who hold derivative nonimmigrant status based on his or her status. Extensions granted to members of a family group must be for the same period of time. The shortest period granted to any member of the family will be granted to all members of the family. In order to be eligible for an extension of stay, nonimmigrant aliens in K–3/K–4 status must do so in accordance with 8 CFR 214.2(k)(10). (3) * * * (v) Any nonimmigrant admitted for duration of status. * * * * * (5) Decisions for extension of stay applications. Where an applicant or petitioner demonstrates eligibility for a requested extension, it may be granted at USCIS’s discretion. The denial of an application for extension of stay may not be appealed. (6) Abandonment of extension of stay and pending employment authorization applications for F, I, and J nonimmigrant aliens. (i) If an alien in F, I, or J nonimmigrant status timely files an application for an extension of stay, USCIS will not consider the application abandoned if the alien departs the United States while the application is pending, provided that when the alien seeks admission, the previously authorized period of admission has not expired and the alien seeks admission E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 60590 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules for the balance of the previously authorized admission period. (ii) An application for extension of stay in F, I, or J nonimmigrant status is abandoned if an alien departs the United States while the application is pending and seeks admission with a Form I–20 or DS–2019 for a program end date beyond their previously authorized period of admission. USCIS will not consider as abandoned any corresponding applications for employment authorization. * * * * * (m) Transition period from duration of status to a fixed admission date—(1) Transition from D/S admission to a fixed admission period for aliens properly maintaining F and J status on [EFFECTIVE DATE OF FINAL RULE]. Aliens with F or J status who are properly maintaining their status on [EFFECTIVE DATE OF FINAL RULE] with admission for duration of status are authorized to remain in the United States in F or J nonimmigrant status until the later date of either the expiration date on an Employment Authorization Document (Form I–766, or successor form), or the program end date noted on their Form I–20 or Form DS–2019, as applicable, not to exceed a period of 4 years from [EFFECTIVE DATE OF FINAL RULE], plus the departure period of 60 days for F nonimmigrants and 30 days for J nonimmigrants. Any authorized employment or training continues until the program end date on such F or J nonimmigrant’s Form I–20 or DS–2019, as applicable and as endorsed by the DSO or RO for employment or training, or expiration date on Employment Authorization Document (Form I–766, or successor form). Aliens who need additional time to complete their current course of study, including requests for post-completion OPT or STEM OPT, or exchange visitor program, or would like to start a new course of study or exchange visitor program must apply for an extension of stay with USCIS in accordance with paragraph (c)(2) of this section for an admission period to a fixed date. (2) Pending employment authorization applications with USCIS on [EFFECTIVE DATE OF FINAL RULE] filed by aliens with F–1 status. F–1 aliens described in paragraph (m)(1) of this section who have timely and properly filed applications for employment authorization pending with USCIS on [EFFECTIVE DATE OF FINAL RULE] do not have to file for an extension or re-file such applications for employment authorization, unless otherwise requested by USCIS. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 (i) If the F–1’s application for postcompletion OPT or STEM–OPT employment authorization is approved, the F–1 will be authorized to remain in the United States in F status until the expiration date of the employment authorization document, plus 60-days. If the employment authorization application is denied, the F–1 would continue to be authorized to remain in the United States until the program end date listed on their Form I–20, plus 60 days, as long as he or she continues to pursue a full course of study and otherwise meets the requirements for F– 1 status. (ii) Aliens in F–1 status with pending employment authorization applications, other than post-completion OPT and STEM–OPT, who continue to pursue a full course of study and otherwise meet the requirements for F–1 status, continue to be authorized to remain in the United States until the program end date listed on the Form I–20, plus 60 days, regardless of whether the employment authorization application is approved or denied. (3) Transition from D/S admission to a fixed admission period for aliens with I status present in the U.S. on [EFFECTIVE DATE OF FINAL RULE]. Except for those aliens described in 8 CFR 214.2(i)(3)(ii), aliens in I nonimmigrant status who are properly maintaining their status on [EFFECTIVE DATE OF FINAL RULE] with admission for duration of status are authorized to remain in the United States in I nonimmigrant status for a period necessary to complete their activity, not to exceed [DATE 240 DAYS AFTER EFFECTIVE DATE OF FINAL RULE] with the exception of aliens in I nonimmigrant status presenting passports issued by the Hong Kong Special Administrative Region, who are authorized to remain in the United States in I nonimmigrant status for a period necessary to complete their activity, not to exceed [DATE 90 DAYS AFTER EFFECTIVE DATE OF FINAL RULE]. Aliens who need additional time to complete their employment must apply for an extension of stay with USCIS in accordance with paragraph (c)(2) of this section for an admission period to a fixed date. (4) Severability. The provisions in 8 CFR 214.1(m) are intended to be independent severable parts. In the event that any provision in this paragraph is not implemented, DHS intends that the remaining provisions be implemented as an independent rule. ■ 3. Section § 214.2 is amended by: ■ a. Revising the paragraph (f)(5) subject heading and paragraphs (f)(5)(i), (ii), (iv), and (vi); PO 00000 Frm 00066 Fmt 4701 Sfmt 4702 b. Adding paragraph (f)(5)(vii); c. Revising the paragraph (f)(7) subject heading and paragraphs (f)(7)(i), (iii), and (iv); ■ d. Adding paragraphs (f)(7)(v) through (viii); ■ e. Revising paragraph (f)(8); ■ f. Revising paragraphs (f)(9)(i), (f)(10)(i), (f)(10)(ii)(D), and (f)(11)(i); ■ g. Removing and reserving paragraph (f)(13); ■ h. Revising paragraph (f)(18)(iii); ■ i. Adding paragraphs (f)(20) and (21); ■ j. Revising paragraph (i), the paragraph (j) subject heading, and paragraphs (j)(1)(ii), (iv), (v), (vi), (vii), and (viii); and ■ k. Adding paragraphs (j)(1)(ix) and (j)(6) and (7). The revisions and additions read as follows: ■ ■ § 214.2 Special requirements for admission, extension, and maintenance of status. * * * * * (f) * * * (5) Authorized admission periods—(i) General. If eligible for admission as described in paragraph (f)(1)(i) of this section, aliens seeking F–1 status may be granted such nonimmigrant status for up to the length of their program (including any period of authorized practical training time following the completion of studies to engage in postcompletion optional practical training (OPT) and Science Technology Engineering and Mathematics Optional Practical Training (STEM OPT) extensions) listed on the Form I–20, not to exceed a period of 4 years, plus a period up to 30 days before the indicated report date or program start date listed on Form I–20 and an additional 30 days at the end of the program, as provided in paragraph (f)(5)(iv) of this section, subject to the following exceptions: (A) Aliens subject to the limitations described in paragraph (f)(20) of this section may be admitted for the applicable period under that paragraph. (B) Aliens whose course of study is in a language training program are restricted to an aggregate total of 24 months of language study, including any school breaks and annual vacations. (C) Aliens who are granted F–1 status as border commuter students under the provisions in paragraph (f)(18) of this section may be admitted for the applicable period described under that paragraph. (D) Aliens who are granted F–1 status to attend a public high school are restricted to an aggregate of no more than 12 months to complete their course of study, including any school breaks and annual vacations. E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules (E) Aliens with pending employment authorization applications who are admitted based on the DSO’s recommended employment end date for post-completion OPT or STEM OPT specified on their Form I–20, with a notice issued by USCIS indicating receipt of the Application for Employment Authorization, Form I–765 or successor form for post-completion or STEM OPT, who cease employment pursuant to an employment authorization document (EAD) that expires before the alien’s fixed date of admission as noted on their I–94, will be considered to be in the United States in a period of authorized stay from the date of the expiration noted on their EAD until the fixed date of admission as noted on their I–94. (F) The authorized period of stay for F–2 dependents may not exceed the authorized period of stay of the principal F–1 alien. (ii) Change of educational levels while in F–1 status. (A) An alien in F–1 status who has completed a program in the United States at one educational level and begins a new program at the next highest educational level is considered to be maintaining F–1 status if otherwise complying with requirements under this paragraph (f). (B) An alien in F–1 status who has completed a program in the United States at one educational level and begins a new program at the same educational level, up to, but not more than two additional times, is considered to be maintaining F–1 status if otherwise complying with requirements under this paragraph (f). This two-time limit on beginning additional programs after completion of a program in the United States at the same educational level is a lifetime limit and does not reset with a new admission as an F–1. (C) An alien in F–1 status who has completed a program in the United States at one educational level and begins a new program at a lower educational level is considered to be maintaining F–1 status only in the first instance of such a change, and if the alien is otherwise complying with the requirements under this paragraph (f). The one-time limit on changing to a lower educational level following completion of a program at a higher level is a lifetime restriction and does not reset with a new admission as an F– 1. (D) When seeking a change in educational levels, aliens in F–1 status referenced in paragraphs (f)(5)(ii)(A) through (C) of this section must, if seeking an extension of stay, apply for an extension of stay on the form designated by USCIS, with the required VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 fee and in accordance with the form instructions, including any biometrics required by 8 CFR 103.16. (E) DHS may delay or suspend the implementation of paragraphs (f)(5)(ii)(A) through (C) of this section, in its discretion, if it determines that implementation is infeasible for any reason. If DHS delays or suspends any provisions in paragraphs (f)(5)(ii)(A) through (C) governing the change in degree level, DHS will make an announcement of the delay or suspension on SEVP’s website at https://www.studyinthestates.dhs.gov (or successor uniform resource locator). DHS thereafter will announce the implementation dates of change in degree level provision on the SEVP website at https:// www.studyinthestates.dhs.gov (or successor uniform resource locator), at least 30 calendar days in advance. * * * * * (iv) Period of preparation for departure or to otherwise maintain status. An alien in F–1 status who has completed a course of study or any authorized practical training following completion of studies will be allowed a 30-day period from the Form I–94 (or successor form) end date or the expiration date noted on the Employment Authorization Document (Form I–766 or successor form), as applicable, to prepare for departure from the United States, or to otherwise maintain status, including timely filing an extension of stay application in accordance with paragraph (f)(7) of this section and § 214.1 or timely filing a change of status application in accordance with 8 CFR 248.1(a). An alien authorized by the DSO to withdraw from classes will be allowed a 15-day period from the date of the withdrawal to depart the United States. An alien admitted in F–1 status who fails to maintain a full course of study without the approval of the DSO or otherwise fails to maintain status is not eligible for any additional period of time for departure. * * * * * (vi) Extension of F–1 stay and grant of employment authorization for aliens who are the beneficiaries of an H–1B petition. (A) The lawful nonimmigrant status and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C) of an alien in F–1 status who is the beneficiary of an H–1B petition, subject to section 214(g)(1)(A) of the Act, as well as those eligible for exemption under section 214(g)(5)(C) of the Act, will be extended automatically until April 1 of the fiscal PO 00000 Frm 00067 Fmt 4701 Sfmt 4702 60591 year for which the H–1B status is requested, where such petition: (1) Has been timely filed; (2) Requests a change of status; and (3) Requests an H–1B employment start date of October 1 of the fiscal year for which the H–1B status is requested. (B) The automatic extension of the alien’s F–1 nonimmigrant status and employment authorization under paragraph (f)(5)(vi)(A) of this section will automatically terminate upon the rejection, denial, revocation, or withdrawal of the H–1B petition filed on such alien’s behalf; upon the withdrawal or denial of the request for change of nonimmigrant status, even if the H–1B petition filed on the alien’s behalf is approved for consular processing; or, if USCIS approves the H– 1B petition and associated change of status request, and the change of status will take effect prior to April 1 of the fiscal year for which H–1B status was requested, upon the date that the change of status takes effect. (C) In order to obtain the automatic extension of stay and employment authorization under this paragraph, the alien, consistent with 8 CFR 248, must not have violated the terms or conditions of his or her F–1 status. (D) The automatic extension of F–1 status under this paragraph (f)(5)(vi) also applies to an F–2 dependent spouse and child(ren) who timely files a change of status application from an F–2 to an H–4 nonimmigrant. The automatic extension for these dependents ends upon termination of the F–1 nonimmigrant’s automatic extension. The timely filing of such change of status application does not authorize employment for the F–2 dependents. (vii) F status and employment authorization while extension of stay and employment authorization applications are pending. An F alien whose status as indicated on the Arrival-Departure Record (Form I–94 or successor form) has expired will be considered to be in a period of authorized stay if he or she has timely filed an extension of stay application pursuant to paragraph (f)(7) of this section until USCIS issues a decision on the extension of stay application. Subject to paragraphs (f)(9)(i) and (ii) of this section and 8 CFR 274a.12(b)(6)(i) and 8 CFR 274a.12(c)(3)(iii), any F–1 alien’s current on-campus and severe economic hardship employment authorization is automatically extended during the pendency of the extension of stay application, but such automatic extension may not exceed 180 days beginning from the end date of his or her period of admission as indicated on the alien’s Arrival-Departure Record E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 60592 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules (Form I–94 or successor form). However, severe economic hardship employment authorization resulting from emergent circumstances under paragraph (f)(5)(v) of this section is automatically extended for up to 180 days or until the end date stated in the Federal Register notice announcing the suspension of certain requirements, whichever is earlier. If an F–1 alien files an extension of stay application during the 30-day period provided in paragraph (f)(5)(iv) of this section, he or she does not receive an automatic extension of employment authorization, including on-campus and severe economic hardship, and must wait for approval of the extension of stay application (and employment authorization application, if required) before engaging in employment. For purposes of employment eligibility verification (Form I–9) under 8 CFR 274a.2(b)(1)(v), for on-campus employment and severe economic hardship employment authorization resulting from emergent circumstances under paragraph (f)(5)(v) of this section, the alien’s Form I–94 (or successor form) or Employment Authorization Document (Form I–766, or successor form) based on severe economic hardship, when combined with a notice issued by USCIS indicating receipt of a timely filed extension of stay application, is considered unexpired for 180 days or until USCIS issues a decision on the extension of stay application, or for severe economic hardship employment based on emergent circumstances, the end date stated in the Federal Register notice announcing suspension of certain requirements, whichever is less. * * * * * (7) Extension of stay applications—(i) General. A program end date as indicated on Form I–20, or successor form, standing alone, does not allow aliens with F status to remain in the United States in lawful status. Aliens in F–1 status must apply for an extension of stay to receive an additional admission period as stated on Form I– 94, or successor form, if needed to complete the course of study, engage in optional practical training pursuant to paragraph (f)(10)(ii) of this section, or to start a new program through the new program end date indicated on Form I– 20, or successor form. If a DSO extends an alien’s program end date for any reason, the alien must apply to USCIS for an extension of stay. * * * * * (iii) Extension of current program and extension of F–1 status—(A) Failure to meet program end date. USCIS may grant an extension of stay to an alien VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 who has maintained his or her F–1 status, but who is unable to meet the program end date on the Form I–20. Such aliens may be eligible for an extension if the DSO issues a new Form I–20, indicating that the alien: (1) Has continually maintained lawful status; (2) Is currently pursuing a full course of study; and (3) Maintains documentation that the request is based on one of the reasons described in paragraph (f)(7)(iii)(B) of this section; (B) Required evidence. In such cases where the alien fails to meet the program end date on the Form I–20, he or she must establish to the satisfaction of USCIS that the delays in completing the program within the time noted on the previous Form I–20, or successor form, are caused by: (1) Compelling academic reasons, such as inability to take the required classes in his or her major due to overenrollment, changes of major or research topics, or unexpected research problems. Unexpected research problems are those caused by an unexpected change in faculty advisor, need to refine investigatory topic based on initial research, research funding delays, and similar issues. Delays including, but not limited to those caused by academic probation or suspension, or where a student whose pattern of behavior demonstrates a repeated inability or unwillingness to complete his or her course of study, such as failing classes, are not acceptable reasons for extensions of a current program and corresponding extension of stay; (2) A documented illness or medical condition. A documented illness or medical condition is a compelling medical reason, such as a serious injury, that is supported by medical documentation from a licensed medical doctor, doctor of osteopathy, or licensed clinical psychologist; or (3) Circumstances beyond the student’s control, including a natural disaster, national health crisis, or the closure of an institution. (C) Timely requested extension of current program end date and extension of F–1 status. To obtain a new program end date reflected on an updated Form I–20, or successor form, aliens must request their DSO to make such a recommendation through SEVIS. The DSO may recommend an extension of the program end date in SEVIS only if the alien requested the recommendation before the program end date noted on the most recent Form I–20, or successor form. If the DSO recommends an extension of the program end date, then PO 00000 Frm 00068 Fmt 4701 Sfmt 4702 the applicant must timely file for an extension of stay on the form and in the manner designated by USCIS, with the required fees and in accordance with the filing instructions, including any biometrics required by 8 CFR 103.16 and a valid, properly endorsed Form I– 20 or successor form, showing the new program end date. If seeking an extension of stay to engage in any type of practical training, the alien in F–1 status also must have a valid, properly endorsed Form I–20 and be eligible to receive the specific type of practical training requested. The alien in F–1 status must be maintaining his or her status and must not have engaged in any unauthorized employment. (D) Late requests of extension of current program end date. If the DSO enters an extension of the program end date in SEVIS after the end date noted on the most recent Form I–20 or successor form, the alien must file a request for reinstatement of F–1 status in the manner and on the form designated by USCIS, with the required fee, including any biometrics required by 8 CFR 103.16. F–2 dependents seeking to accompany the F–1 principal student must file applications for an extension of stay or reinstatement, as applicable. (iv) Form. To request an extension of stay, applicants must file an extension of stay application on the form and in the manner designated by USCIS, including submitting the updated, properly endorsed Form I–20 or successor form, submitting evidence of sufficient funds to cover expenses, appearing for any biometrics collection required by 8 CFR 103.16, and remitting the appropriate fee. (v) Timely filing. An extension of stay application is considered timely filed if the receipt date, pursuant to 8 CFR 103.2(a)(7), is on or before the date the authorized period of admission expires, which includes the 30-day period provided in paragraph (f)(5)(iv) of this section. USCIS must receive the extension application before the expiration of the authorized period of admission, including the 30-day period provided in paragraph (f)(5)(iv) of this section allowed after the completion of studies or any authorized practical training. If the extension of stay application is received during the 30day period provided in paragraph (f)(5)(iv) of this section, the alien in F– 1 status is authorized to continue a full course of study but may not continue or begin engaging in practical training or other employment. (vi) Length of extensions. Extensions of stay may be granted for up to the period of time needed to complete the E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules program or requested practical training, not to exceed 4 years, unless the alien is a border commuter, enrolled in language training or a public high school, or paragraph (f)(20) of this section applies, in which case the restrictions of paragraphs (f)(5)(i) and (f)(18) and (20) of this section will govern the new admission period and attendant employment authorization. (vii) Dependents. Dependent F–2 spouses and children seeking to accompany the principal F–1 student during the additional period of admission must either be included on the primary applicant’s request for extension of stay or file their own extension of stay applications on the form designated by USCIS, including any biometrics required by 8 CFR 103.16. USCIS must receive the extension of stay applications before the expiration of the previously authorized period of admission, including the 30day period following the completion of the course of study, as indicated on the F–2 dependent’s Form I–94, or successor form. The F–2 dependent must demonstrate the qualifying relationship with the principal F–1 student, be maintaining his or her status, and must not have engaged in any unauthorized employment. Extensions of stay for F–2 dependents may not exceed the authorized admission period of the principal F–1 student. (viii) Denials. If an alien’s extension of stay application is denied and the alien’s authorized admission period has expired, the alien and his or her dependents must immediately depart the United States. (8) School transfer and change in educational level. (i) An alien in F–1 status may change educational levels or transfer to SEVP-certified schools if he or she is maintaining status as described in paragraphs (f)(5)(ii)(A) through (C) of this section. An alien seeking a transfer to another SEVP-certified school, or to a different campus at the same school, must follow the notification procedure prescribed in paragraph (f)(8)(iii) of this section. Aliens in F–1 status changing educational levels or transferring to an SEVP-certified school also must meet the following requirements: (A) The alien will begin classes at the transfer school or program within 5 months of transferring out of the current school or within 5 months of the program completion date on his or her current Form I–20, or successor form, whichever is earlier. (B) If the alien is authorized to engage in post-completion optional practical training (OPT), he or she must be able to resume classes within 5 months of VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 transferring out of the school that recommended OPT or the date the OPT authorization ends, whichever is earlier. (ii) An alien who is not maintaining F–1 status, including because he or she failed to pursue a full course of study at the school that he or she was last authorized to attend, is ineligible to change educational levels or transfer and must either depart immediately, or apply for reinstatement under the provisions of paragraph (f)(16) of this section, if eligible. Academic probation, suspension, or a pattern of student behavior demonstrating a repeated inability or unwillingness toward completing his or her course of study, such as failing grades, resulting in the student failing to carry a full course of study, are not acceptable reasons for failing to pursue a full course of study, unless the student was previously authorized for a reduced course load pursuant to paragraph (f)(6)(iii) of this section. (iii) To transfer schools, the alien must first notify the school he or she is attending (‘‘transfer out school’’) of the intent to transfer, then obtain a valid Form I–20, or successor form, from the school to which he or she intends to transfer (‘‘transfer in school’’). Upon notification by the student, the transfer out school will update the student’s record in SEVIS as a ‘‘transfer out’’ and indicate the transfer in school and a release date. The release date will be the current semester or session completion date, or the date of expected transfer if earlier than the established academic cycle. The transfer out school will retain control over the student’s record in SEVIS until the student completes the current term or reaches the release date, whichever is earlier. At the request of the student, the DSO of the current school may cancel the transfer request at any time prior to the release date. As of the release date specified by the current DSO, the transfer in school will be granted full access to the student’s SEVIS record and then becomes responsible for that student. The transfer out school conveys authority and responsibility over that student to the transfer in school and will no longer have full SEVIS access to that student’s record. As such, a transfer request may not be cancelled by the transfer out DSO after the release date has been reached. After the release date, the transfer in DSO must complete the transfer of the student’s record in SEVIS and may issue a Form I–20. The student is then required to contact the DSO at the transfer in school within 15 days of the program start date listed on the Form I– 20. Upon notification that the student is enrolled in classes, the DSO of the PO 00000 Frm 00069 Fmt 4701 Sfmt 4702 60593 transfer in school must update SEVIS to reflect the student’s registration and current address, thereby acknowledging that the student has completed the transfer process. In the remarks section of the student’s Form I–20, the DSO must note that the transfer has been completed, including the date, and return the form to the student. The transfer is effected when the transfer-in school notifies SEVIS that the student has enrolled in classes in accordance with the 30 days required by 8 CFR 214.3(g)(3)(iii). (iv) F–1 transfer students must report to the transfer in DSO no later than 15 days after their Program Start Date. No later than 30 days after the Initial Session Start Date as listed in SEVIS, the transfer-in DSO must: (A) Register the student in SEVIS, if the student enrolls at the transfer in school; or (B) Terminate the student’s record in SEVIS, if the student does not enroll. (v) If the new program to which the student transferred will not be completed within the authorized admission period established in paragraph (f)(5)(i) or (f)(20) of this section, the F–1 student must apply to USCIS for an extension of stay in the manner and on the form designated by USCIS, with the required fee and in accordance with form instructions, including any biometrics required by 8 CFR 103.16, together with a valid, properly endorsed Form I–20 indicating the new program end date. (9) * * * (i) On-campus employment. Oncampus employment must either be performed on the school’s premises, (including on-location commercial firms that provide services for students on campus, such as the school bookstore or cafeteria), or at an off-campus location that is educationally affiliated with the school. Employment with on-site commercial firms, such as a construction company building a school building, which do not provide direct student services is not deemed oncampus employment for the purposes of this paragraph. In the case of off-campus locations, the educational affiliation must be associated with the school’s established curriculum or related to contractually funded research projects at the post-graduate level. In any event, the employment must be an integral part of the student’s educational program. Employment authorized under this paragraph must not exceed 20 hours a week while school is in session, unless DHS suspends the applicability of this limitation due to emergent circumstances by means of publication of a document in the Federal Register, E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 60594 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules the student demonstrates to the DSO that the employment is necessary to avoid severe economic hardship resulting from the emergent circumstances, and the DSO notates the Form I–20 in accordance with the Federal Register document. However, an alien in F–1 status or in a period of authorized stay during a pending F–1 extension of stay application may work on campus full-time when school is not in session or during the annual vacation. An alien in F–1 status or in a period of authorized stay during a pending F–1 extension of stay application who has been issued a Form I–20 to begin a new program in accordance with the provision of 8 CFR 214.3(k) and who intends to enroll for the next regular academic year, term, or session at the institution that issued the Form I–20 may continue on-campus employment incident to status but may not work beyond the fixed date of admission as noted on his or her Form I–94, or successor form. An alien in F– 1 status or in a period of authorized stay during a pending F–1 extension of stay application may not engage in oncampus employment after completing a course of study, except employment for practical training as authorized under paragraph (f)(10) of this section. An alien in F–1 status or in a period of authorized stay during a pending F–1 extension of stay application may engage in any on-campus employment authorized under this paragraph that will not displace United States workers. In the case of a transfer in SEVIS, the alien may only engage in on-campus employment at the school having jurisdiction over the student’s SEVIS record. Upon initial entry to begin a new course of study, such aliens may not begin on-campus employment more than 30 days prior to the actual start of classes. If applicable, an alien described in paragraph (f)(5)(vii) of this section, whose timely filed applications for an extension of stay and employment authorization (if required) are pending may engage in on-campus employment for a period not to exceed 180 days, or until USCIS approves his or her applications, whichever is earlier. * * * * * (10) * * * (i) Curricular practical training. An alien in F–1 status may be authorized by the DSO to participate in a curricular practical training program that is an integral part of an established curriculum. Curricular practical training is defined to be alternative work/study, internship, cooperative education, or any other type of required internship or practicum that is offered by sponsoring VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 employers through cooperative agreements with the school. Aliens in F–1 status who have received 1 year or more of full time curricular practical training are ineligible for postcompletion academic training. Exceptions to the one academic year requirement are provided for students enrolled in graduate studies that require immediate participation in curricular practical training. A request for authorization for curricular practical training must be made to the DSO. An alien may begin curricular practical training only after receiving his or her Form I–20 with the DSO endorsement. Curricular practical training may not be granted for a period exceeding the alien’s fixed date of admission as noted on his or her Form I–94, or successor form. If applicable, an alien described under paragraph (f)(5)(vii) of this section, must not engage in curricular practical training until USCIS approves his or her extension of stay application. (A) [Reserved] (B) SEVIS process. To grant authorization for a student to engage in curricular practical training, a DSO at a SEVIS school will update the student’s record in SEVIS as being authorized for curricular practical training that is directly related to the student’s major area of study. The DSO will indicate whether the training is full-time or parttime, the employer and location, and the employment start and end date. The DSO will then print a copy of the employment page of the SEVIS Form I– 20 indicating that curricular practical training has been approved. The DSO must sign, date, and return the SEVIS Form I–20 to the student prior to the student’s commencement of employment. (ii) * * * (D) Extension of stay for postcompletion OPT. An alien in F–1 status recommended for post-completion OPT must apply for an extension of stay and employment authorization and may not engage in post-completion OPT unless such employment authorization is granted. If the application for an extension of stay and post-completion OPT are granted, the alien will receive an additional 30-day period provided in paragraph (f)(5)(iv) of this section following the expiration of the status approved to complete post-completion OPT. * * * * * (11) * * * (i) Applicant responsibilities. An alien in F–1 status must initiate the OPT application process by requesting a recommendation for OPT from his or her DSO. Upon making the PO 00000 Frm 00070 Fmt 4701 Sfmt 4702 recommendation, the DSO will provide the alien a signed Form I–20, or successor form, indicating that recommendation. (A) Applications for employment authorization. An alien in F–1 status must properly file an application for employment authorization, on the form and in the manner designated by USCIS, with the required fee, as described in the form’s instructions, including submitting a valid, properly endorsed Form I–20 for OPT and other supporting documents. (B) Filing deadlines for precompletion OPT and post-completion OPT—(1) Pre-completion OPT. For precompletion OPT, the alien in F–1 status may properly file his or her application for employment authorization up to 120 days before being enrolled for one full academic year, provided that the period of employment will not start prior to the completion of the first full academic year. (2) Post-completion OPT. For postcompletion OPT, not including a 24month OPT extension under paragraph (f)(10)(ii)(C)(2) of this section, the alien in F–1 status must file his or her extension of stay and employment authorization application with USCIS up to 120 days prior to his or her program end date and no later than 30 days after his or her program end date. (C) Applications and filing deadlines for 24-month OPT extension—(1) Application. An alien in F–1 status meeting the eligibility requirements for a 24-month OPT extension under paragraph (f)(10)(ii)(C) of this section to engage in STEM OPT must file an extension of stay application under paragraph (f)(7) of this section and an application for employment authorization on the form designated by USCIS with the required fees and in accordance with form instructions. (2) Filing deadline. An alien in F–1 status may file the application for STEM OPT employment authorization up to 120 days prior to the expiration date of the alien’s current OPT employment authorization and after the DSO enters the STEM OPT recommendation into the student’s SEVIS record. (3) Extension of OPT. If an alien timely and properly files an application for STEM OPT employment authorization and timely and properly requests a DSO recommendation, including by submitting the fully executed Form I–983, Training Plan for STEM OPT Students, or successor form, to his or her DSO, but the Form I–766, Employment Authorization Document or successor form, currently in the alien’s possession expires before USCIS issues a decision on the alien’s STEM E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules OPT employment application, the alien’s Form I–766, or successor form, is extended automatically pursuant to the terms and conditions specified in 8 CFR 274a.12(b)(6)(iv). * * * * * (18) * * * (iii) Period of admission. An alien with F–1 nonimmigrant status who is admitted as a border commuter student under this paragraph (f)(18) will be admitted until a date certain. The DSO is required to specify a completion date on the Form I–20 that reflects the actual semester or term dates for the commuter student’s current term of study. A new Form I–20 will be required for each new semester or term that the alien attends at the school. * * * * * (20) Limitations on period of admission. Subject to the discretion of the Secretary of Homeland Security, aliens with F–1 status in the following categories may only be admitted for up to 2 years, or the program end date as stated on the Form I–20, whichever is shorter, and may be eligible for extensions of stay for additional periods of up to 2 years each, or until the program end date, whichever is shorter. These categories of 2-year maximum period of admission are: (i) Certain countries and U.S. national interest. Aliens who were born in or are citizens of countries listed on the State Sponsor of Terrorism List, or who are citizens of countries with a student and exchange visitor total overstay rate greater than ten percent according to the most recent DHS Entry/Exit Overstay report. DHS will publish a document in the Federal Register listing the countries or circumstances which fall into the categories in this paragraph making aliens in F–1 status subject to the 2 year maximum period of admission, and any other such circumstances that may serve the U.S. national interest. Changes to the list will be made by the publication of a new Federal Register document; (ii) Unaccredited institutions. The alien has been accepted to and attends a post-secondary educational institution not accredited by an accrediting agency recognized by the Secretary of Education; (iii) E-Verify participation. The alien has been accepted to and attends an educational institution that is not enrolled in E-Verify, or if enrolled, is not a participant in good standing in EVerify as determined by USCIS. Educational institutions that are participants in good standing in the EVerify program are: Enrolled in E-Verify with respect to all hiring sites in the VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 United States at the time of the alien’s admission in F–1 status or at the time the alien files an application for an extension of or change to F–1 status with USCIS; are in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continue to be participants in good standing in E-Verify at any time during which the alien is pursuing a full-course of study at the educational institution; or (iv) Language training programs. The student is attending an English language training program, which does not lead to a degree. (v) Alien with a 4-year period of admission who becomes subject to a 2year maximum period of admission. If an alien was admitted in F status for a 4-year period of admission, but a new Federal Register Notice is subsequently published according to paragraph (f)(20)(i) of this section that would subject the alien to the 2-year maximum period of admission, then the alien may remain in the United States for the remainder of the 4-year period. However, if the alien departs the United States or otherwise must apply for admission or extension of stay, that alien will become subject to the 2-year limitation. (21) Severability. The provisions in 8 CFR 214.2(f) are intended to be independent severable parts. In the event that any provision in this paragraph is not implemented, DHS intends that the remaining provisions be implemented as an independent rule. * * * * * (i) Representatives of information media—(1) Foreign Media Organization. A foreign information media organization is an organization engaged in the regular gathering, production or dissemination via print, radio, television, internet distribution, or other media, of journalistic information and has a home office in a foreign country. (2) Evidence. Aliens applying for I nonimmigrant status must: (i) Demonstrate that the foreign media organization that the alien represents has a home office in a foreign country, and that the home office will continue to operate in the foreign country while they are in the United States; and (ii) Provide a letter from the employing foreign media organization or, if self-employed or freelancing, an attestation from the alien, that verifies the employment, establishes that they are representatives of that media organization, and describes the remuneration and work to be performed. PO 00000 Frm 00071 Fmt 4701 Sfmt 4702 60595 (3) Admission. (i) Generally, aliens seeking admission in I status may be admitted for a period of time necessary to complete the planned activities or assignments consistent with the I classification, not to exceed 240 days unless paragraph paragraph (i)(3)(ii) of this section applies. (ii) Foreign nationals travelling on a passport issued by the People’s Republic of China (with the exception of Macau Special Administrative Region passport holders) or Hong Kong Special Administrative Region passport holders: An alien who presents a passport from the People’s Republic of China (with the exception of Macau Special Administrative Region passport holders) or an alien who is a Hong Kong Special Administrative Region passport holder, may be admitted until the activities or assignments consistent with the I classification are completed, not to exceed 90 days. (4) Change in activity. Aliens admitted pursuant to section 101(a)(15)(I) of the Act may not change the information medium or employer until they obtain permission from USCIS. Aliens must request permission by submitting the form designated by USCIS, in accordance with that form’s instructions, and with the required fee, including any biometrics required by 8 CFR 103.16, as appropriate. (5) Extensions of stay. (i) Aliens in I status may be eligible for an extension of stay of up to 240 days (90 days for aliens who present a passport issued by the People’s Republic of China or Hong Kong Special Administrative Region passport holders, with the exception of Macau Special Administrative Region passport holders) or until the activities or assignments consistent with the I classification are completed; whichever date is earlier. To request an extension of stay, aliens in I status must file an application to extend their stay by submitting the form designated by USCIS, in accordance with that form’s instructions, and with the required fee, including any biometrics required by 8 CFR 103.16, as appropriate. An alien whose I status, as indicated on Form I– 94, has expired but who has timely filed an extension of stay application is authorized to continue engaging in activities consistent with the I classification on the day after the Form I–94 expired, for a period of up to 240 days, as provided in 8 CFR 274a.12(b)(20). Such authorization may be subject to any conditions and limitations of the initial authorization. (ii) Notwithstanding paragraph (i)(5)(i) of this section and 8 CFR 274a.12(b)(20), an alien in I status who is described in paragraph (i)(3)(ii) of this E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 60596 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules section whose status, as indicated on Form I–94, has expired but who has timely filed an extension of stay application is authorized to continue engaging in activities consistent with the I classification on the day after the Form I–94 expired, for a period of up to 90 days. Such authorization may be subject to any conditions and limitations of the initial authorization. (6) Denials. If an alien’s extension of stay application is denied and the alien’s authorized admission period has expired, the alien and his or her dependents must immediately depart the United States. (7) Severability. The provisions in this paragraph (i) are intended to be independent severable parts. In the event that any provision in this paragraph is not implemented, DHS intends that the remaining provisions be implemented as an independent rule. (j) Exchange visitors. (1) * * * (ii) Admission period and period of stay—(A) J–1 exchange visitor. A J–1 exchange visitor may be admitted for the duration of the exchange visitor program, as stated by the program end date noted on Form DS–2019, or successor form, not to exceed a period of 4 years, unless subject to paragraph (j)(6) of this section. If paragraph (j)(6) of this section applies, the admission period will be governed by the limitations of paragraph (j)(6) of this section. (B) J–2 accompanying spouse and dependent. The authorized period of initial admission for J–2 dependents is subject to the same requirements as the J–1 exchange visitor and may not exceed the period of authorized admission of the principal J–1 exchange visitor. (C) Period of stay. A J–1 exchange visitor and J–2 spouse and children may be admitted for a period up to 30 days before the report date or start of the approved program listed on Form DS– 2019, or successor form, plus a period of 30 days at the end of the program for the purposes of departure, as provided by this paragraph (j)(1)(ii)(C), or to otherwise maintain status. * * * * * (iv) Extension of stay. A future program end date as indicated on the Form DS–2019, or successor form, standing alone, does not allow aliens with J status to remain in the United States in lawful status. If a sponsor issues a Form DS–2019 or successor form extending an alien’s program end date for any reason, or the alien requires an additional admission period to complete his or her program, the alien must apply to USCIS for an extension of stay. VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 (A) Form. To request an extension of stay, an alien in J status must file an extension of stay application on the form and in the manner designated by USCIS, including submitting the valid Form DS–2019 or successor form, appearing for any biometrics collection required by 8 CFR 103.16, and remitting the appropriate fee. (B) Timely filing. An application is considered timely filed if the receipt date is on or before the date the authorized admission period expires. USCIS must receive the extension of stay application before the expiration of the authorized period of admission, including the 30-day period of preparation for departure allowed after the completion of the program. If the extension application is received during the 30-day period provided in paragraph (j)(1)(ii)(C) of this section following the completion of the exchange visitor program, the alien in J–1 status may continue to participate in his or her exchange visitor program. (C) Length of extensions. Extensions of stay may be granted for a period up to the length of the program, not to exceed 4 years, unless the J–1 exchange visitor is subject to paragraph (j)(6) of this section or otherwise restricted by regulations at 22 CFR part 62. (D) Dependents. Dependent J–2 spouses and children seeking to accompany the J–1 exchange visitor during the additional period of admission must either be included on the primary applicant’s request for extension or file their own extension of stay applications on the form designated by USCIS, including any biometrics required by 8 CFR 103.16. USCIS must receive the extension of stay applications before the expiration of the previously authorized period of admission, including the 30-day period following the completion of the program provided in paragraph (j)(1)(ii)(C) of this section, as indicated on the J–2 dependent’s Form I–94, or successor form. J–2 dependents must demonstrate the qualifying relationship with the principal J–1 exchange visitor, be maintaining status, and not have engaged in any unauthorized employment. Extensions of stay for J–2 dependents may not exceed the authorized admission period of the principal J–1 exchange visitor. (E) Denials. If an alien’s extension of stay application is denied, and the alien’s authorized admission period has expired, he or she and his or her dependents must immediately depart the United States. (v) Employment of J–2 dependents. The spouse or minor children of a J–1 exchange visitor may only engage in PO 00000 Frm 00072 Fmt 4701 Sfmt 4702 employment if authorized by USCIS. The employment authorization is valid only if the J–1 is maintaining status. An application for employment authorization must be filed in the manner prescribed by USCIS, together with the required fee and any additional evidence required in the filing instructions. Income from the J–2 dependent’s employment may be used to support the family’s customary recreational and cultural activities and related travel, among other things. Employment will not be authorized if this income is needed to support the J– 1 principal exchange visitor. If the requested period of employment authorization exceeds the current admission period, the J–2 dependent must file an extension of stay application, in addition to the application for employment authorization, in the manner designated by USCIS, with the required fee and in accordance with form instructions. (vi) Extension of J–1 stay and grant of employment authorization for aliens who are the beneficiaries of a capsubject H–1B petition. USCIS may, by notice in the Federal Register, at any time it determines that the H–1B numerical limitation as described in section 214(g)(1)(A) of the Act will likely be reached prior to the end of a current fiscal year, extend for such a period of time as deemed necessary to complete the adjudication of the H–1B application, the status of any J–1 alien on behalf of whom an employer has timely filed an application for change of status to H–1B. The alien, in accordance with 8 CFR part 248, must not have violated the terms of his or her nonimmigrant stay and not be subject to the 2-year foreign residence requirement at 212(e) of the Act. Any J–1 student whose status has been extended shall be considered to be maintaining lawful nonimmigrant status for all purposes under the Act, provided that the alien does not violate the terms and conditions of his or her J nonimmigrant stay. An extension made under this paragraph also applies to the J–2 dependent alien. (vii) Pending extension of stay applications and employment authorization. (A) An alien whose J–1 status, as indicated on Form I–94, has expired but who has timely filed an extension of stay application is authorized to continue engaging in activities consistent with pursuing the terms and conditions of the alien’s program objectives and including authorized training beginning on the day after the admission period expires, for a period of up to 240 days as provided in 8 CFR 274a.12(b)(20). Such E:\FR\FM\25SEP2.SGM 25SEP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules authorization may be subject to any conditions and limitations of the initial authorization. (B) An Arrival-Departure Record (Form I–94 or successor form) is considered unexpired when combined with a USCIS receipt notice indicating receipt of a timely filed extension of stay application and a valid Form DS– 2019, or successor form, indicating the duration of the program. An application is considered timely filed if the receipt notice for the application is on or before the date the admission period expires. Such extension may not exceed the earlier of 240 days, as provided in 8 CFR 274a.12(b)(20), or the date of denial of the alien’s application for an extension of stay. (C) An alien in J–2 status whose admission period has expired (as indicated on his or her Form I–94) may not engage in employment until USCIS approves his or her application for employment authorization. (viii) Use of SEVIS. The use of the Student and Exchange Visitor Information System (SEVIS) is mandatory for designated program sponsors. All designated program sponsors must issue a SEVIS Form DS– 2019 to any exchange visitor requiring a reportable action (e.g., program extensions and requests for employment authorization), or for any aliens who must obtain a new nonimmigrant J visa. As of 2003, the records of all current or continuing exchange visitors must be entered in SEVIS. (ix) Current name and address. A J– 1 exchange visitor must inform USCIS and the responsible officer of the exchange visitor program of any legal changes to his or her name or of any change of address, within 10 calendar days of the change, in a manner prescribed by the program sponsor. A J– 1 exchange visitor enrolled in a SEVIS program can satisfy the requirement in 8 CFR 265.1 of notifying USCIS by providing a notice of a change of address within 10 calendar days to the responsible officer, who in turn shall enter the information in SEVIS within 10 business days of notification by the exchange visitor. In cases where an exchange visitor provides the sponsor a mailing address that is different than his or her actual physical address, he or she is responsible to provide the sponsor his or her actual physical location of residence. The exchange visitor program sponsor is responsible for maintaining a record of, and must provide upon request from USCIS, the actual physical location where the exchange visitor resides. * * * * * VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 (6) Limitations on length of admission. Subject to the discretion of the Secretary of Homeland Security, in consultation with the Secretary of State, a J–1 exchange visitor in the following categories may be admitted for a period of up to the length of the exchange visitor program as stated on the Form DS–2019 or up to 2 years, whichever is shorter, and may be eligible to apply for extensions of stay for additional periods of up to 2 years each, until the end date of the exchange visitor program. These categories of 2-year periods of admission are: (i) Certain countries and U.S. national interest. Exchange visitors who were born in or are citizens of countries listed in the State Sponsor of Terrorism List or who are citizens of countries with a student and exchange visitor total overstay rate greater than ten percent according to the most recent DHS Entry/ Exit Overstay report. DHS will publish a document in the Federal Register listing the countries or circumstances making aliens in J–1 status subject to the factors listed in this paragraph and such other factors that may serve the U.S. national interest. Changes to the list will be made by a new Federal Register document; or (ii) E-Verify participation. The J exchange visitor is participating in an exchange visitor program whose sponsor is not enrolled in E-Verify, or if enrolled, is not a participant in good standing in E-Verify as determined by USCIS. A sponsor is a participant in good standing in the E-Verify program if it has enrolled in E-Verify with respect to all hiring sites in the United States at the time of the exchange visitor’s admission in J–1 status or filing of an application for extension of or change to J–1 status with USCIS, is in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continues to be a participant in good standing in E-Verify at any time during which the J–1 exchange visitor is participating in an exchange visitor program at the organization. (iii) Alien with a 4-year period of admission who becomes subject to a 2year maximum period of admission. If an alien in J status was originally admitted for a 4-year period of admission, but a new Federal Register document is subsequently published according to paragraph (j)(6)(i) of this section that would subject the alien to the 2-year maximum period of admission, then the alien may remain in the United States for the remainder of the 4-year period. However, if the J–1 exchange visitor departs the United PO 00000 Frm 00073 Fmt 4701 Sfmt 4702 60597 States or otherwise must apply for admission or extension of stay, that alien will become subject to the 2-year limitation. (7) Severability. The provisions in this paragraph (j) are intended to be independent severable parts. In the event that any provision in this paragraph is not implemented, DHS intends that the remaining provisions be implemented as an independent rule. * * * * * PART 248—CHANGE OF NONIMMIGRANT CLASSIFICATION 4. The authority citation for part 248 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2. 5. Section 248.1 is amended: a. By redesignating paragraphs (e) and (f) as paragraphs (g) and (h), respectively, and adding new paragraphs (e) and (f); ■ b. In newly redesignated paragraph (g) by removing the words ‘‘A district director shall’’ and adding in their place ‘‘USCIS will’’; and ■ c. In the first and second sentences of newly redesignated paragraph (h) by removing the word ‘‘shall’’ and adding in its place ‘‘will’’. The additions read as follows: ■ ■ § 248.1 Eligibility * * * * * (e) Admission of aliens under section 101(a)(15)(F) and (J) previously granted duration of status—Aliens who were granted a change to F or J status prior to [EFFECTIVE DATE OF FINAL RULE] and who departed the United States and are applying for admission on or after [EFFECTIVE DATE OF FINAL RULE] will be inspected and may be admitted into the United States up to the program end date as noted on the Form I–20 or DS–2019 that accompanied the change of status application that was approved prior to the alien’s departure, not to exceed a period of 4 years, unless subject to 8 CFR 214.2(f)(20) or (j)(6). To be admitted into the United States, all aliens must be eligible for the requested status and possess the proper documentation including a valid passport, valid nonimmigrant visa, if required, and valid Form I–20 or Form DS–2019, or successor form. (f) Abandonment of change of status application. If an alien timely files an application to change to another nonimmigrant status but departs the United States while the application is pending, USCIS will consider the change of status application abandoned. * * * * * E:\FR\FM\25SEP2.SGM 25SEP2 60598 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules PART 274a—CONTROL OF EMPLOYMENT OF ALIENS 6. The authority citation for part 274a continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 101–410, 104 Stat. 890, as amended by Pub. L. 114– 74, 129 Stat. 599. 7. Section 274a.12 is amended by revising paragraphs (b)(6)(i), (iii), and (v), (b)(10), and (c)(3)(iii) to read as follows: ■ § 274a.12 Classes of aliens authorized to accept employment. * * * * (b) * * * (6) * * * (i) On-campus employment for not more than 20 hours per week when school is in session or full-time employment when school is not in session if the student intends and is eligible to register for the next term or semester. Part-time on-campus employment is authorized by the school. On-campus employment terminates on the alien’s fixed date of admission as noted on his or her Form I–94. If applicable, the employment authorization of an alien described in 8 CFR 214.2(f)(5)(vii) may be automatically extended for up to 180 days, or until authorized by USCIS, whichever is earlier. In cases where the employment is authorized pursuant to 8 CFR 214.2(f)(5)(v), the validity of the employment authorization is provided by notice in the Federal Register and indicated by a Certificate of Eligibility for Nonimmigrant (F–1/M–1) Students, Form I–20 or successor form, endorsed by the Designated School Official recommending such an extension. * * * * * (iii) Curricular practical training (internships, cooperative training programs, or work-study programs that are part of an established curriculum) khammond on DSKJM1Z7X2PROD with PROPOSALS2 * VerDate Sep<11>2014 18:49 Sep 24, 2020 Jkt 250001 after having been enrolled full-time in a SEVP-certified institution for one full academic year. Curricular practical training (part-time or full-time) is authorized by the Designated School Official on the student’s Form I–20, or successor form. Curricular practical training terminates on the earlier of the employment end date indicated on Form I–20, or successor form, or on the alien’s fixed date of admission as noted on his or her Form I–94. If applicable, an alien described in 8 CFR 214.2(f)(5)(vii) must not engage in curricular practical training until USCIS approves an alien’s extension of stay request. * * * * * (v) The beneficiary of an H–1B petition and change of status request as described in 8 CFR 214.2(f)(5)(vi)(A) and whose status and employment authorization have been extended pursuant to 8 CFR 214.2(f)(5)(vi). These aliens are authorized to continue employment with the same employer beginning on the date of the expiration of the authorized period of admission until April 1 of the fiscal year for which H–1B status is requested. Such authorization will be subject to any conditions and limitations noted on the initial authorization. Such authorization, however, will automatically terminate upon the notification date in the denial decision if USCIS denies the H–1B petition or request for change of status. If USCIS approves the H–1B petition and associated change of status request, and the change of status will take effect prior to April 1 of the fiscal year for which H–1B status was requested, such authorization will automatically terminate on the date that the change of status takes effect. * * * * * (10) A foreign information media representative (I), pursuant to 8 CFR PO 00000 Frm 00074 Fmt 4701 Sfmt 9990 214.2(i). An alien in this status may be employed pursuant to the requirements of 8 CFR 214.2(i). Employment authorization does not extend to the dependents of a foreign information media representative. * * * * * (c) * * * (3) * * * (iii) Is seeking employment because of severe economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C) and has an Employment Authorization Document, Form I–766 or successor form, based on severe economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C), and whose timely filed Application for Employment Authorization, Form I–765 or successor form, and Application to Extend/Change Nonimmigrant Status, Form I–539 or successor form, are pending, is authorized to engage in employment beginning on the expiration date of the Employment Authorization Document issued under paragraph (c)(3)(i)(B) of this section and ending on the date of USCIS’ written decision on the current Application for Employment Authorization, Form I–765 or successor form, but not to exceed 180 days. For this same period, such Employment Authorization Document, Form I–766 or successor form, is automatically extended and is considered unexpired when combined with a Certificate of Eligibility for Nonimmigrant (F–1/M–1) Students, Form I–20 or successor form, endorsed by the Designated School Official recommending such an extension. * * * * * Chad R. Mizelle, Senior Official Performing the Duties of the General Counsel, U.S. Department of Homeland Security. [FR Doc. 2020–20845 Filed 9–24–20; 8:45 am] BILLING CODE 9111–28–P E:\FR\FM\25SEP2.SGM 25SEP2

Agencies

DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 85, Number 187 (Friday, September 25, 2020)]
[Proposed Rules]
[Pages 60526-60598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20845]



[[Page 60525]]

Vol. 85

Friday,

No. 187

September 25, 2020

Part II





 Department of Homeland Security





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8 CFR Parts 214, 248, et al.





Establishing a Fixed Time Period of Admission and an Extension of Stay 
Procedure for Nonimmigrant Academic Students, Exchange Visitors, and 
Representatives of Foreign Information Media; Proposed Rule

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

[[Page 60526]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214, 248, and 274a.12

[DHS Docket No. ICEB-2019-0006]
RIN 1653-AA78


Establishing a Fixed Time Period of Admission and an Extension of 
Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, 
and Representatives of Foreign Information Media

AGENCY: U.S. Immigration and Customs Enforcement, Department of 
Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In fiscal year 2018, the Department of Homeland Security (DHS 
or the Department) admitted over 2 million foreign nationals into the 
United States in the F academic student, J exchange visitor, and I 
representatives of foreign information media nonimmigrant categories. 
This is a testament to the United States' exceptional academic 
institutions, cutting-edge technology, and environment that promotes 
the exchange of ideas, research, and mutual enrichment. Currently, 
aliens in the F, J, and I categories are admitted into the United 
States for the period of time that they are complying with the terms 
and conditions of their nonimmigrant category (``duration of status''), 
rather than an admission for a fixed time period. This duration of 
status framework generally lacks predetermined points in time for U.S. 
Citizenship and Immigration Services (USCIS) or U.S. Customs and Border 
Protection (CBP) immigration officers to directly evaluate whether F, 
J, and I nonimmigrants are maintaining their status and poses a 
challenge to the Department's ability to effectively monitor and 
oversee these categories of nonimmigrants. Specifically, because 
nonimmigrants admitted in the F, J, and I classifications generally do 
not currently begin to accrue unlawful presence until the day after 
there is a formal finding of a status violation by USCIS or an 
immigration judge, they are often are able to avoid accrual of unlawful 
presence for purposes of statutory inadmissibility grounds of unlawful 
presence, in part, because they do not file applications or petitions, 
such as extension of stay, that would result in a formal finding. The 
Department accordingly is concerned about the integrity of the programs 
and a potential for increased risk to national security. To address 
these issues, DHS proposes to amend its regulations by changing the 
admission period of F, J, and I aliens from duration of status to an 
admission for a fixed time period. Admitting individuals in the F, J, 
and I categories for a fixed period of time will require all F, J, and 
I nonimmigrants who wish to remain in the United States beyond their 
specifically authorized admission period to apply for an extension of 
stay directly with USCIS or to depart the country and apply for 
admission with CBP at a port of entry (POE). This change would provide 
the Department with additional protections and mechanisms to exercise 
the oversight necessary to vigorously enforce our nation's immigration 
laws, protect the integrity of these nonimmigrant programs, and 
promptly detect national security concerns.

DATES: Written comments and related material must be submitted on or 
before October 26, 2020.

ADDRESSES: You must submit comments on the proposed rule identified by 
DHS Docket No. ICEB-2019-0006, only through the following method:
     Federal eRulemaking Portal (preferred): https://www.regulations.gov. Follow the website instructions to submit 
comments.
    Comments submitted in a manner other than the one listed above, 
including emails or letters sent to DHS or U.S. Immigration and Customs 
Enforcement (ICE) officials, will not be considered comments on the 
proposed rule and may not receive a response from DHS. Please note that 
DHS and ICE cannot accept any comments that are hand delivered or 
couriered. In addition, due to COVID-19, ICE cannot accept mailed 
comments whether paper or contained on any form of digital media 
storage devices, such as CDs/DVDs and USB drives.
    Collection of information. You must submit comments on the 
collection of information discussed in this notice of proposed 
rulemaking to either DHS's docket or the Office of Management and 
Budget's (OMB) Office of Information and Regulatory Affairs (OIRA). 
OIRA will have access to and view the comments submitted in the docket. 
OIRA submissions can also be sent using any of the following 
alternative methods:
     Email (alternative): [email protected] (include 
the docket number and ``Attention: Desk Officer for U.S. Immigration 
and Customs Enforcement, DHS'' in the subject line of the email).
     Fax: 202-395-6566.
     Mail: Office of Information and Regulatory Affairs, Office 
of Management and Budget, 725 17th Street NW, Washington, DC 20503; 
Attention: Desk Officer, U.S. Immigration and Customs Enforcement, DHS.
    For additional instructions on sending comments, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document.

FOR FURTHER INFORMATION CONTACT: Sharon Hageman, Acting Regulatory Unit 
Chief, Office of Policy and Planning, U.S. Immigration and Customs 
Enforcement, Department of Homeland Security, 500 12th Street SW, 
Washington, DC 20536. Telephone 202-732-6960 (not a toll-free number).

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

Table of Contents

I. Public Participation
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
II. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of the Proposed Regulatory Revisions
    C. Legal Authorities
    D. Costs and Benefits
III. Background
    A. Regulatory History of Duration of Status
    B. Risks to the Integrity of the F, J, and I Nonimmigrant 
Classifications
IV. Discussion of the Proposed Rule
    A. General Period of Admission for F and J Nonimmigrants
    B. Automatic Extension of Visa Validity at Port of Entry
    C. Extension of Stay (EOS)
    D. Transition Period
    E. Requirements for Admission, Extension, and Maintenance of 
Status of F Nonimmigrants
    F. Requirements for Admission, Extension, and Maintenance of 
Status of I Nonimmigrants
    G. Requirements for Admission, Extension, and Maintenance of 
Status of J Exchange Visitors
    H. Change of Status
    I. Classes of Aliens Authorized To Accept Employment
V. Statutory and Regulatory Requirements
    A. Executive Orders 12866, 13563, and 13771: Regulatory Review
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act of 1996
    D. Congressional Review Act
    E. Unfunded Mandates Reform Act of 1995
    F. Paperwork Reduction Act
    G. Executive Order 13132: Federalism
    H. Executive Order 12988: Civil Justice Reform
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. National Environmental Policy Act (NEPA)

[[Page 60527]]

    K. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    L. Executive Order 12630: Governmental Actions and Interference 
With Constitutionally Protected Property Rights
    M. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    N. National Technology Transfer and Advancement Act
    O. Family Assessment
    P. Signature

I. Public Participation

    DHS encourages all interested parties to participate in this 
rulemaking by submitting written data, views, comments and arguments on 
all aspects of this proposed rule. DHS also invites comments that 
relate to the economic, environmental, or federalism effects that might 
result from this proposed rule. Under the guidelines of the Office of 
the Federal Register, all properly submitted comments will be posted to 
https://www.regulations.gov as part of the public record and will 
include any personal information you have provided. See the ADDRESSES 
section for information on how to submit comments.

A. Submitting Comments

    You must submit your comments in English or provide an English 
translation. The most helpful comments will reference a specific 
portion of the proposed rule, explain the reason for any recommended 
change, and include data, information, or authority supporting the 
recommended change. If you submit comments, please include the docket 
number for this rulemaking (ICEB-2019-0006), indicate the specific 
section of this document to which each comment applies, and provide a 
reason for each suggestion or recommendation. You may submit your 
comments and materials online. Due to COVID-19-related restrictions, 
ICE has temporarily suspended its ability to receive public comments by 
mail.
    Instructions: To submit your comments online, go to https://www.regulations.gov, and insert ``ICEB-2019-0006'' in the ``Search'' 
box. Click on the ``Comment Now!'' box and input your comment in the 
text box provided. Click the ``Continue'' box, and, if you are 
satisfied with your comment, follow the prompts to submit it.
    DHS will post them to the Federal eRulemaking Portal at https://www.regulations.gov and will include any personal information you 
provide. Therefore, submitting this information makes it public. You 
may wish to consider limiting the amount of personal information that 
you provide in any voluntary public comment submission you make to DHS. 
DHS may withhold information provided in comments from public viewing 
that it determines is offensive. For additional information, please 
read the ``Privacy and Security Notice,'' via the link in the footer of 
https://www.regulations.gov.
    DHS will consider all properly submitted comments and materials 
received during the comment period and may change this rule based on 
your comments.

B. Viewing Comments and Documents

    Docket: To view comments, as well as documents mentioned in this 
preamble as being available in the docket, go to https://www.regulations.gov and insert ``ICEB-2019-0006'' in the ``Search'' 
box. Click on the ``Open Docket Folder,'' and you can click on ``View 
Comment'' or ``View All'' under the ``Comments'' section of the page. 
Individuals without internet access can make alternate arrangements for 
viewing comments and documents related to this rulemaking by contacting 
ICE through the FOR FURTHER INFORMATION CONTACT section above. You may 
also sign up for email alerts on the online docket to be notified when 
comments are posted or a final rule is published.

C. Privacy Act

    As stated in the Submitting Comments section above, please be aware 
that anyone can search the electronic form of comments received in any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may wish to consider limiting the 
amount of personal information that you provide in any voluntary public 
comment submission you make to DHS. The Department may withhold 
information from public viewing that it determines is offensive. For 
additional information, please read the Privacy and Security Notice 
posted on https://www.regulations.gov.

II. Executive Summary

A. Purpose of the Regulatory Action

    Studying and participating in exchange visitor and academic 
programs in the United States offers foreign nationals access to world-
renowned faculty, cutting edge resources, state-of-the art courses, and 
individualized instructional programs. Similarly, the United States 
fosters an environment that promotes the exchange of ideas and 
encourages open discussions when there are differences of opinions, 
which the United States also encourages by allowing foreign news and 
media members the same unimpeded access and opportunity to share in the 
constitutional freedoms of the press as domestic news and media 
members. These benefits have attracted hundreds of thousands of foreign 
nationals to the United States in the F academic student,\1\ J exchange 
visitor,\2\ and I representatives of foreign information media \3\ 
categories. DHS values the benefits these nonimmigrants, in turn, bring 
to the United States.
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    \1\ INA 101(a)(15)(F), 8 U.S.C. 1101(a)(15)(F).
    \2\ INA 101(a)(15)(J), 8 U.S.C. 1101(a)(15)(J).
    \3\ INA 101(a)(15)(I), 8 U.S.C. 1101(a)(15)(I).
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    Unlike aliens in most nonimmigrant categories who are admitted 
until a specific departure date, F, J, and I nonimmigrants are admitted 
into the United States for an unspecified period of time to engage in 
activities authorized under their respective nonimmigrant 
classifications. This unspecified period of time is referred to as 
``duration of status'' (D/S). D/S for F academic students is generally 
the time during which a student is pursuing a full course of study at 
an educational institution approved by DHS, or engaging in authorized 
practical training following completion of studies, plus authorized 
time to depart the country.\4\ D/S for J exchange visitors is the time 
during which an exchange visitor is participating in an authorized 
program, plus authorized time to depart the country.\5\ D/S for I 
representatives of foreign information media is the duration of his or 
her employment.\6\ For dependents of principal F, J, or I 
nonimmigrants, D/S generally tracks the principal's period of admission 
so long as the dependents are also complying with the requirements for 
their particular classifications.\7\ Since D/S was first introduced,\8\ 
the number of F,

[[Page 60528]]

J, and I nonimmigrants admitted each year into the United States has 
significantly increased. In 2019 alone, there were over a million 
admissions in F status, a dramatic rise from the 263,938 admissions in 
F status when the legacy Immigration and Naturalization Service (INS) 
shifted to D/S admission in 1978.\9\ Similar growth in the J population 
has also occurred over the past decades. In 2018, there were 611,373 
admissions in J status, up over 300 percent from the 141,213 J 
admissions into the United States in 1985.\10\ Finally, there were 
44,140 admissions for foreign media representatives in the United 
States in 2018, over 160 percent growth from the 16,753 admissions into 
the U.S. in 1985.\11\ DHS appreciates the academic benefits, cultural 
value, and economic contributions these foreign nationals make to 
academic institutions and local communities throughout the United 
States.\12\
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    \4\ Statutory and regulatory requirements restrict the duration 
of study for an alien who is admitted in F-1 status to attend a 
public high school to an aggregate of 12 months of study at any 
public high school(s). See Immigration and Nationality Act (INA) 
section 214(m), 8 U.S.C. 1184(m); see also 8 CFR 214.2(f)(5)(i).
    \5\ See 8 CFR 214.2(j)(1)(ii) (explaining the initial admission 
period) and (j)(1)(iv) (explaining that extensions of stay can be 
obtained with a new Form DS-2019). See also 22 CFR 62.43 (permitting 
responsible officers to extend J nonimmigrant's program beyond the 
original DS-2019 end date according to length permitted for the 
specific program category).
    \6\ 8 CFR 214.2(i).
    \7\ See 8 CFR 214.2(f)(3), (f)(5)(vi)(D) (discussing F-2 period 
of authorized admission); 214.2(j)(1)(ii), (j)(1)(iv) (discussing J-
2 authorized period of admission); INA 101(a)(15)(I), 8 U.S.C. 
1101(a)(15)(I); 22 CFR 41.52(c); USCIS Policy Manual, 2 USCIS-PM K.2 
(Apr. 7, 2020).
    \8\ In 1985, when D/S was introduced for I and J nonimmigrants, 
there were 16,753 admissions in I status, 141,213 admissions in J 
status, and 251,234 admissions in F-1 status. See 1997 Statistical 
Yearbook of the Immigration and Naturalization Service at https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_1997.pdf (last visited Jan. 7, 
2020).
    \9\ In fiscal year (FY) 2019, there were 1,122,403 admissions in 
F-1 status. See DHS Office of Immigration Statistics (OIS) Legal 
Immigration and Adjustment of Status Report Data Tables (FY 2019), 
available at https://www.dhs.gov/immigration-statistics/readingroom/special/LIASR (last visited Aug. 27, 2020). In fiscal year 2016, 
there were approximately 1.11 million F and J nonimmigrants residing 
in the United States. See DHSOIS Population Estimates, Nonimmigrants 
Residing in the United States: Fiscal Year 2016 (Mar. 2018), 
available at https://www.dhs.gov/sites/default/files/publications/Nonimmigrant_Population%20Estimates_2016_0.pdf (last visited Jan. 
22, 2020). That same year, 48,405 aliens were admitted into the 
United States in I status. See DHS OIS 2018 Yearbook of Immigration 
Studies (Nov. 13, 2019) available at https://www.dhs.gov/immigration-statistics/yearbook/2018 (last visited Jan. 29, 2020).
    \10\ See DHS OIS Annual Flow Report, Annual Flow Report, U.S. 
Nonimmigrant Admissions: 2018 (Oct. 2019) available at https://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2018/nonimmigrant_admissions_2018.pdf (last visited Jan. 
22, 2020).
    \11\ Id.
    \12\ NAFSA: Association of International Educator's latest 
analysis finds that international students studying at U.S. colleges 
and universities contributed $41 billion and supported 458,290 jobs 
to the U.S. economy during the 2018-2019 academic year. See https://www.nafsa.org/policy-and-advocacy/policy-resources/nafsa-international-student-economic-value-tool-v2.
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    However, the significant increase in the volume of F academic 
students, J exchange visitors, and I foreign information media 
representatives poses a challenge to the Department's ability to 
monitor and oversee these categories of nonimmigrants while they are in 
the United States. During the length of their stay for D/S, a period of 
admission without a specified end date, these nonimmigrants are not 
required to have direct interaction with DHS, except for a few limited 
instances, such as when applying for employment authorization for 
optional practical training or for reinstatement if they have failed to 
maintain status. Admission for D/S, in general, does not afford 
immigration officers enough predetermined opportunities to directly 
verify that aliens granted such nonimmigrant statuses are engaging only 
in those activities their respective classifications authorize while 
they are in the United States. In turn, this has undermined DHS's 
ability to effectively enforce compliance with the statutory 
inadmissibility grounds related to unlawful presence and has created 
incentives for fraud and abuse.
    Given these concerns, DHS believes that the admission of F, J, and 
I nonimmigrants for D/S is no longer appropriate. With this notice of 
proposed rulemaking (NPRM), DHS proposes to replace the D/S framework 
for F, J, and I nonimmigrants with an admission period with a specific 
date upon which an authorized stay ends. Nonimmigrants who would like 
to stay in the United States beyond their fixed date of admission would 
need to apply directly with DHS for an extension of stay.\13\ DHS 
anticipates that many F, J, and I nonimmigrants would be able to 
complete their activities within their period of admission. However, 
those who could not generally would be able to request an extension to 
their period of admission from an immigration officer. In addition, as 
proposed, certain categories of aliens would be eligible for shorter 
periods of admission based on national security, fraud, or overstay 
concerns but like all aliens with fixed admission periods, would have a 
specific date upon which they would be required to depart the United 
States or would need to apply to DHS to have their continued 
eligibility for F, J, or I status reviewed by immigration officers. DHS 
believes that this process would help to mitigate risks posed by 
foreign adversaries who seek to exploit these programs.
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    \13\ See generally 8 CFR 214.1(c) (setting forth the general 
extension of stay (EOS) requirements applicable to most other 
nonimmigrants).
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    Replacing admissions for D/S with admissions for a fixed period of 
authorized stay is consistent with most other nonimmigrant 
categories,\14\ would provide additional protections and oversight of 
these nonimmigrant categories, and would allow DHS to better evaluate 
whether these nonimmigrants are maintaining status while temporarily in 
the United States. DHS does not believe such a requirement would place 
an undue burden on F, J, and I nonimmigrants. Rather, providing F, J, 
and I nonimmigrants a fixed time period of authorized stay that would 
require them to apply to extend their stay, change their nonimmigrant 
status, or otherwise obtain authorization to remain in the United 
States (e.g., by filing an application for adjustment of status) at the 
end of this specific admission period is consistent with requirements 
applicable to most other nonimmigrant classifications.
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    \14\ For example, see 8 CFR 214.2(a)(1) (setting forth a period 
of admission for the A-3 nonimmigrant classification); (b)(1) 
(period of admission for aliens admitted under the B nonimmigrant 
classification); (c)(3) (period of admission for aliens in transit 
through the United States); (e)(19) (periods of admission for most E 
nonimmigrants); (g)(1) (period of admission for the G-5 nonimmigrant 
classification); (h)(5)(viii) (9)(iii) and (13) (various periods of 
admission and maximum periods of stay for the H-1B, H-2A, H-2B, and 
H-3 nonimmigrant classification); (k)(8) (period of admission for 
the K-3 and K-4 nonimmigrant classification); (l)(11)-(12) (periods 
of admission and maximum periods of stay for the L nonimmigrant 
classification); (m)(5), (10) (period of stay for the M nonimmigrant 
classification); (n)(3) (period of admission for certain parents and 
children eligible for admission as special immigrants under section 
101(a)(27)(I)); (o)(6)(iii) and (10) (period of admission for the O 
nonimmigrant classification); (p)(8)(iii) and (12) (period of 
admission for the P nonimmigrant classification); (q)(2) (period of 
admission for the Q nonimmigrant classification); (r)(6) (period of 
admission for the R nonimmigrant classification); (s)(1)(ii) (period 
of admission for the NATO-7 nonimmigrant classification); (t)(5)(ii) 
(period of admission for the S nonimmigrant classification); and 
(w)(13) and (16) (period of admission for the CW-1 nonimmigrant 
classification).
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    These changes would ensure that the Department has an effective 
mechanism to periodically and directly assess whether these 
nonimmigrants are complying with the conditions of their 
classifications and U.S. immigration laws, and to obtain timely and 
accurate information about the activities they have engaged in and plan 
to engage in during their temporary stay in the United States. If 
immigration officers discover a nonimmigrant in one of these categories 
has overstayed or otherwise violated his or her status, the proposed 
changes may result in the alien beginning to accrue unlawful presence 
for purposes of unlawful presence-related statutory grounds of 
inadmissibility under the Immigration and Nationality Act (INA). DHS 
believes this greater oversight would deter F, J, or I nonimmigrants 
from engaging in fraud and abuse and strengthen the integrity of these 
nonimmigrant classifications.
    The Department believes that the provisions of each new regulatory

[[Page 60529]]

amendment function sensibly independent of other provisions. However, 
to protect the Department's goals for proposing this rule, DHS proposes 
to add regulatory text stating that the provisions be severable so 
that, if necessary, the regulations may continue to function even if a 
provision is rendered inoperable.

B. Summary of the Proposed Regulatory Revisions

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

[[Page 60530]]

    [cir] Striking references to ``duration of status,'' to Form I-539, 
Application to Extend/Change a Nonimmigrant Status, and to Form I-765, 
Application for Employment Authorization;
    [cir] Updating the employment authorization provisions to 
incorporate the proposed revisions in 8 CFR 214.2.

C. Legal Authorities

    The Secretary of Homeland Security's (the Secretary) authority to 
propose the regulatory amendments in this rule can be found in various 
provisions of the immigration laws and the changes in this rule are 
proposed pursuant to these statutory authorities.
    Section 102 of the Homeland Security Act of 2002 (HSA) (Pub. L. 
107-296, 116 Stat. 2135), 6 U.S.C. 112, and section 103(a)(1) and (3) 
of the Immigration and Nationality Act (INA), 8 U.S.C. 1103 (a)(1), 
(3), charge the Secretary with the administration and enforcement of 
the immigration and naturalization laws of the United States. Section 
214(a) of the INA, 8 U.S.C. 1184(a), gives the Secretary the authority 
to prescribe, by regulation, the time and conditions of admission of 
any alien as a nonimmigrant, including F, J, and I nonimmigrant aliens. 
See also 6 U.S.C. 271(a)(3), (b) (describing certain USCIS functions 
and authorities, including USCIS' authority to establish national 
immigration services policies and priorities and adjudicate benefits 
applications) and 6 U.S.C. 252(a)(4) (describing ICE's authority to 
collect information relating to foreign students and exchange visitor 
program participants and to use such information to carry out its 
enforcement functions).
    Section 248 of the INA, 8 U.S.C. 1258, permits DHS to allow certain 
nonimmigrants to change their status from one nonimmigrant status to 
another nonimmigrant status, with certain exceptions, as long as they 
continue to maintain their current nonimmigrant status and are not 
inadmissible under section 212(a)(9)(B)(i) of the Act, 8 U.S.C. 
1182(a)(9)(B)(i). Like extensions of stay, change of status 
adjudications are discretionary determinations.\15\ Also, section 274A 
of the INA, 8 U.S.C. 1324a, governs the employment of aliens who are 
authorized to be employed in the United States by statute or in the 
discretion of the Secretary.
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    \15\ See INA 248(a), 8 U.S.C. 1258(a); 8 CFR 248.1(a).
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    Finally, the INA establishes who may be admitted as F, J, or I 
aliens. Specifically, section 101(a)(15)(F) of the INA, 8 U.S.C. 
1101(a)(15)(F)(i), established the F nonimmigrant classification for, 
among others, bona fide students qualified to pursue a full course of 
study who wish to enter the United States temporarily and solely for 
the purpose of pursuing a full course of study at an academic or 
language training school certified by ICE, Student and Exchange Visitor 
Program (SEVP), as well as for the spouse and minor children of such 
aliens. See also INA 214(m), 8 U.S.C. 1184(m) (limiting the admission 
of nonimmigrants for certain aliens who intend to study at public 
elementary and secondary schools).
    Section 101(a)(15)(I) of the INA, 8 U.S.C. 1101(a)(15)(I), 
established, upon a basis of reciprocity, the I nonimmigrant 
classification for bona fide representatives of foreign information 
media (such as press, radio, film, print) seeking to enter the United 
States to engage in such vocation, as well as for the spouses and 
children of such aliens.
    Section 101(a)(15)(J) of the INA, 8 U.S.C. 1101(a)(15)(J), 
established the J nonimmigrant classification for aliens who wish to 
come to the United States temporarily to participate in exchange 
visitor programs designated by the DOS, as well as for the spouses and 
minor children of such aliens.
    Within DHS, ICE's SEVP is authorized to administer the program to 
collect information related to nonimmigrant students and exchange 
visitors under various statutory authorities. Section 641 of The 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 
Public Law 104-208, 110 Stat. 3009-546, 3009-704 (Sep. 30, 1996) 
(codified as amended at 8 U.S.C. 1372) (IIRIRA), authorizes the 
creation of a program to collect current and ongoing information 
provided by schools and exchange visitor programs regarding F and J 
nonimmigrants during the course of their stays in the United States, 
using electronic reporting technology where practicable. Consistent 
with this statutory authority, DHS manages these programs pursuant to 
Homeland Security Presidential Directive-2 (HSPD-2), Combating 
Terrorism Through Immigration Policies (Oct. 29, 2001), as amended, 
https://www.gpo.gov/fdsys/pkg/CPRT-110HPRT39618/pdf/CPRT-110HPRT39618.pdf), and section 502 of the Enhanced Border Security and 
Visa Entry Reform Act of 2002, Public Law 107-173, 116 Stat. 543, 563 
(May 14, 2002) (EBSVERA). HSPD-2 requires the Secretary of Homeland 
Security to conduct periodic, ongoing reviews of institutions certified 
to accept F nonimmigrants, and to include checks for compliance with 
recordkeeping and reporting requirements. Section 502 of EBSVERA 
directs the Secretary to review the compliance with recordkeeping and 
reporting requirements under 8 U.S.C. 1101(a)(15)(F) and 1372 of all 
schools approved for attendance by F students within two years of 
enactment, and every two years thereafter.

D. Costs and Benefits

    Currently, aliens in the F (academic student), J (exchange 
visitor), and I (representatives of foreign information media) 
categories are admitted to the United States under the duration of 
status framework. However, admitting a nonimmigrant for duration of 
status creates a challenge to the Department's ability to efficiently 
monitor and oversee these nonimmigrants, because they may remain in the 
United States for indefinite periods of time without being required to 
have immigration officers periodically assess whether they are 
complying with the terms and conditions of their status. Nor are 
immigration officers required to make periodic assessments of whether 
these nonimmigrants present national security concerns. Under the D/S 
framework, these nonimmigrants are required to have direct interaction 
with DHS officials only if they file certain applications, such as when 
applying for employment authorization for optional practical training 
or for reinstatement if they have failed to maintain status, or if they 
are the subject of an enforcement action. To address these 
vulnerabilities, DHS proposes to replace D/S with an admission for a 
fixed time period. Admitting individuals in the F, J, and I categories 
for a fixed period of time would require all F, J, and I nonimmigrants 
who wish to remain in the United States beyond their specific 
authorized admission period to apply for authorization to extend their 
stay with USCIS if in the United States or if abroad then to apply for 
admission at a POE with CBP, thus requiring periodic assessments by DHS 
in order to remain in the United States for a longer period. This 
change would impose incremental costs on F, J, and I nonimmigrants, but 
would in turn protect the integrity of the F, J and I programs by 
having immigration officers evaluate and assess the appropriate length 
of stay for these nonimmigrants.
    The period of analysis for the rule covers 10 years and assumes the 
proposed rule would go into effect in 2020. Therefore, the analysis 
period goes from 2020 through 2029. This analysis estimates the 
annualized value of future costs using two discount rates: 3 percent 
and 7 percent. In Circular A-4, OMB recommends that a 3 percent 
discount rate be used when a regulation

[[Page 60531]]

affects private consumption, and a 7 percent discount rate be used in 
evaluating a regulation that will mainly displace or alter the use of 
capital in the private sector. The discount rate accounts for how costs 
that occur sooner are more valuable. The NPRM would have an annualized 
cost ranging from $229.9 million to $237.8 million (with 3 and 7 
percent discount rates, respectively).

III. Background

A. Regulatory History of Duration of Status

i. F Classification
    Section 101(a)(15)(F)(i) of the INA, 8 U.S.C. 1101(a)(15)(F)(i), 
permits aliens who are bona fide students to temporarily be admitted to 
the United States solely for the purpose for pursuing a full course of 
study at an established college, university, seminary, conservatory, 
academic high school, elementary school, or other academic language 
training program. Principal applicants are categorized as F-1 
nonimmigrant aliens and their spouses and minor children may accompany 
or follow to join them as F-2 dependents.\16\
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    \16\ INA 101(a)(15)(F)(i)-(ii), 8 U.S.C. 1101(a)(15)(F)(i)-(ii); 
8 CFR 214.2(f)(3).
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    From 1973 to 1979, F students were admitted for 1-year and could be 
granted an EOS in increments of up to 1-year if they established that 
they were maintaining status.\17\ However, on July 26, 1978, given the 
large number of nonimmigrant students in the United States at the time 
and the need to continually process their EOS applications, legacy INS 
proposed amending the regulations to permit F-1 aliens to be admitted 
for the duration of their status as students.\18\ Legacy INS explained 
the changes would facilitate the admission of nonimmigrant students, 
provide dollar and manpower savings to the Government, and permit more 
efficient use of resources.\19\ On November 22, 1978, the final rule 
was published amending the regulations at 8 CFR 214 to allow INS to 
admit F-1 aliens for the duration of their status as students.\20\ The 
new rule became effective on January 1, 1979.\21\
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    \17\ See 38 FR 35425 (Dec. 28, 1973) (The period of admission of 
a non-immigrant student shall not exceed one-year.)
    \18\ See 43 FR 32306 (Jul. 26, 1978).
    \19\ See 43 FR 32306, 32306-07 (Jul. 26, 1978).
    \20\ See 43 FR 54618 (Nov. 22, 1978) (The period of admission of 
a nonimmigrant student shall be for the duration of Status in the 
United States as a student if the information on his/her form 1-20 
indicates that he/she will remain in the United States as a student 
for more than 1 year. If the information on form 1-20 indicates the 
student will remain in the United States for 1 year or less, he/she 
shall be admitted for the time necessary to complete his/her period 
of study).
    \21\ Id.
---------------------------------------------------------------------------

    Subsequently, the regulations addressing the admission periods for 
nonimmigrant students were amended four more times between January 23, 
1981, and October 29, 1991.\22\ On January 23, 1981, the former INS 
issued a rule eliminating D/S for F-1 nonimmigrants and limiting their 
admission to a fixed period of admission, i.e., the time necessary to 
complete the course of study, with the opportunity for an EOS on a 
case-by-case basis.\23\ Legacy INS explained this was necessary because 
admitting nonimmigrants students for D/S resulted in questionable 
control over foreign students and contributed to problems in record 
keeping.\24\
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    \22\ See 46 FR 7267 (Jan. 23, 1981), 48 FR 14575 (Apr. 5, 1983); 
52 FR 13223 (Apr. 22, 1987); 56 FR 55608 (Oct. 29, 1991).
    \23\ See 46 FR 7267 (Jan. 23, 1981).
    \24\ Id.
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    On April 5, 1983, legacy INS reinstituted D/S, while addressing 
areas of concern identified after the 1978 implementation of D/S for 
nonimmigrant students.\25\ The amendments implemented new notification 
procedures for transfers between schools and new record-keeping and 
reporting requirements for Designated School Officials (DSO).\26\ These 
amendments also limited D/S to the period when a student was enrolled 
in one educational level and required nonimmigrant students to apply 
for an EOS and, if applicable, a school transfer to pursue another 
educational program at the same level of educational attainment.\27\
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    \25\ See 48 FR 14575 (Apr. 5, 1983).
    \26\ A Designated School Official (DSO) means a regularly 
employed member of the school administration whose office is located 
at the school and whose compensation does not come from commissions 
for recruitment of foreign students. See 8 CFR 214.3(l).
    \27\ See 48 FR 14575, 84 (Apr. 5, 1983).
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    On April 22, 1987, legacy INS refined the April 5, 1983, regulatory 
package, again amending regulations regarding F-1 students.\28\ 
Additional regulations explained which medical and academic reasons 
allowed F-1 students to drop below a full-time course of study and 
remain in status and clarified when F-1 students must request an EOS or 
reinstatement.\29\
---------------------------------------------------------------------------

    \28\ See 52 FR 13223 (Apr. 22, 1987).
    \29\ Id.
---------------------------------------------------------------------------

    In 1991, the regulations were further revised to implement Section 
221(a) of the Immigration Act of 1990 (IMMACT 90), Public Law 101-649, 
104 Stat. 4978, which established a three-year off-campus program for 
F-1 students.\30\ In the 1991 Final Rule, legacy INS also clarified and 
simplified the procedures for F-1 students seeking EOS and employment 
authorization. This included giving DSOs authority to grant a program 
extension (and therefore an EOS) for in-status students with a 
compelling academic or medical reason for failing to complete their 
educational program by the program end date on their Form I-20.\31\ The 
rule required DSOs to notify legacy INS of the extension.\32\ In the 
rulemaking, legacy INS specifically agreed to allow DSOs to issue 
program extensions, explaining that ``with the DSOs screening out 
ineligible students, the Service is satisfied that the purposes of the 
EOS can be effectively met through the notification procedure.'' \33\ 
Pursuant to the 1991 Final Rule, DHS has relied on DSOs to report 
student status violators, issue program extensions, and transfer 
students between programs and schools.
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    \30\ See 56 FR 55608 (Oct. 29, 1991).
    \31\ Form I-20, Certificate of Eligibility for Nonimmigrant 
Student Status, is the document used by DHS that provides supporting 
information for the issuance of a student visa. Applicants 
(including dependents) must have a Form I-20 to apply for a student 
visa, to enter the United States, and to apply for an employment 
authorization document to engage in optional practical training. See 
SEVP's web page, Form I-20, ``Certificate of Eligibility for 
Nonimmigrant Student Status'' at https://studyinthestates.dhs.gov/student-forms?form=Forms_I-20 (last visited Jan. 29, 2020).
    \32\ See 56 FR 55608 (Oct. 29, 1991).
    \33\ Id.
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ii. J Classification
    The J nonimmigrant classification was created in 1961 by the Mutual 
Educational and Cultural Exchange Act of 1961, also known as the 
Fulbright-Hays Act of 1961, Public Law 87-256, 75 Stat. 527 (22 U.S.C. 
2451, et seq.), to increase mutual understanding between the people of 
the United States and the people of other countries by means of 
educational and cultural exchanges. It authorizes foreign nationals to 
participate in a variety of exchange visitor programs in the United 
States. The Exchange Visitor Program regulations cover the following 
program categories: Professors and research scholars, short-term 
scholars, trainees and interns, college and university students, 
teachers, secondary school students, specialists, alien physicians,

[[Page 60532]]

international visitors, government visitors, camp counselors, au pairs, 
and summer work travel.\34\
---------------------------------------------------------------------------

    \34\ See INA 101(a)(15)(J), 8 U.S.C. 1101(a)(15)(J), and 22 CFR 
62.20-62.32.
---------------------------------------------------------------------------

    Prior to 1985, J exchange visitors were granted an initial 
admission for the period of their program up to one year.\35\ In 1985, 
the regulations were amended to allow J exchange visitors to be 
admitted for the duration of their program plus 30 days.\36\ This 
change from being admitted for a fixed period to D/S was implemented as 
part of a continuing effort to reduce reporting requirements for the 
public as well as the paperwork burden associated with processing 
extension requests on the agency.\37\
---------------------------------------------------------------------------

    \35\ See 8 CFR 214.2(j)(1)(ii) (1985).
    \36\ See 50 FR 42006 (Oct. 17, 1985).
    \37\ Id.
---------------------------------------------------------------------------

    A prospective exchange visitor must be sponsored by a DOS-
designated program sponsor to be admitted to the United States in the J 
nonimmigrant category and participate in an exchange visitor program. 
The DOS designated sponsor will issue a prospective J exchange visitor 
a Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) 
Status. The DS-2019 permits a prospective exchange visitor to apply for 
a J-1 nonimmigrant visa at a U.S. embassy or consulate abroad or seek 
admission as a J-1 nonimmigrant at a port of entry. A J-1 exchange 
visitor is admitted into the United States for D/S, which is the length 
of his or her exchange visitor program.\38\
---------------------------------------------------------------------------

    \38\ Form DS-2019, Certificate of Eligibility for Exchange 
Visitor (J-1) Status, is the document required to support an 
application for an exchange visitor visa (J-1). It is a 2-page 
document that can only be produced through the Student and Exchange 
Visitor Information System (SEVIS). SEVIS is the DHS database 
developed to collect information on F, M, and J nonimmigrants (see 8 
U.S.C. 1372 and 6 U.S.C. 252(a)(4)). The potential exchange 
visitor's signature on page one of the form is required. Page 2 of 
the current Form DS-2019 consists of instructions and certification 
language relating to participation. No blank Forms DS-2019 exist. 
Each Form DS-2019 is printed with a unique identifier known as a 
``SEVIS ID number'' in the top right-hand corner, which consists of 
an ``alpha'' character (N) and 10 numerical characters (e.g., 
N0002123457). The Department of State's Office of Private Sector 
Exchange Designation in the Bureau of Education and Cultural Affairs 
(ECA/EC/D) designates U.S. organizations to conduct exchange visitor 
programs. These organizations are known as program sponsors. When 
designated, the organization is authorized access to SEVIS and is 
then able to produce Form DS-2019 from SEVIS. The program sponsor 
signs the completed Forms DS-2019 in blue ink and transmits them to 
the potential exchange visitor and his or her spouse and minor 
children. J visa applicants must present a signed Form DS-2019 at 
the time of their visa interview. Once the visa is issued, however, 
the SEVIS record cannot be updated until the participant's program 
is validated (``Active'' in SEVIS). The sponsor is required to 
update the SEVIS record upon the exchange visitor's entry and no 
corrections to the record can be made until that time. In addition, 
in the event a visa is needed for a dependent spouse or child, the 
system will not permit a new Form DS-2019 to be created until after 
the primary's SEVIS record is validated. See 9 FAM 402.5-6(D)(1) (U) 
The Basic Form available at https://fam.state.gov/fam/09FAM/09FAM040205.html#M402_5_6_D (last visited Jan. 29, 2020). While 
applicants must still present a paper Form DS-2019 to DOS in order 
to qualify for a visa, the SEVIS record is the definitive record of 
student or exchange visitor status and visa eligibility. See 9 FAM 
402.5-4(B) (U), Student and Exchange Visitor Information System 
(SEVIS) Record is Definitive Record, available at https://fam.state.gov/FAM/09FAM/09FAM040205.html (last visited Jan. 29, 
2020).
---------------------------------------------------------------------------

    Extensions of J exchange visitor programs are governed by DOS 
regulations.\39\ If there is authority to extend a program, the 
exchange visitor program sponsor's Responsible Officer (RO),\40\ 
similar to the DSO in the F-1 student context, is authorized to extend 
a J exchange visitor's program by issuing a duly executed Form DS-
2019.\41\ Requests for extensions beyond the maximum program duration 
provided in the regulations must be approved by DOS, which adjudicates 
these extensions. USCIS does not adjudicate these program extensions.
---------------------------------------------------------------------------

    \39\ See 22 CFR part 62. These programs vary in length. For 
example, professors and research scholars are generally authorized 
to participate in the Exchange Visitor Program for the length of 
time necessary to complete the program, provided such time does not 
exceed five years. See 22 CFR 62.20(i)(1). And alien physicians, are 
generally limited to seven years. See 22 CFR 62.27(e)(2).
    \40\ A Responsible Officer (RO) is an employee or officer of a 
sponsor who has been nominated by the sponsor, and approved by the 
Department of State, to carry out the duties outlined in 22 CFR 
62.11.
    \41\ See 22 CFR 62.43. A RO must be a citizen of the United 
States or a lawful permanent resident of the United States. See 22 
CFR 62.2.
---------------------------------------------------------------------------

iii. I Classification
    Section 101(a)(15)(I) of the INA defines the I classification as, 
upon a basis of reciprocity, an alien who is a bona fide representative 
of foreign press, radio, film, or other foreign information media who 
seeks to enter the United States solely to engage in such vocation, and 
the spouse and children of such a representative, if accompanying or 
following to join him. Nonimmigrant foreign information media 
representatives are currently admitted for the duration of their 
employment. They are not permitted to change their information medium 
or employer until they obtain permission from USCIS.\42\
---------------------------------------------------------------------------

    \42\ See 8 CFR 214.2(i).
---------------------------------------------------------------------------

    From 1973 to 1985, aliens admitted to the United States in I 
nonimmigrant status were admitted for a period of 1 year with the 
possibility of extensions.\43\ In 1985, legacy INS amended the 
regulations to allow nonimmigrant foreign information media 
representatives to be admitted for the duration of their 
employment.\44\ This change from a set time period of admission to 
admission for duration of employment for I nonimmigrants was 
implemented as part of a continuing effort to reduce reporting 
requirements for the public, as well as the paperwork burden associated 
with processing extension requests on the agency.\45\ Through its 
administration of the regulations authorizing I nonimmigrants admission 
for duration of employment, DHS currently admits all I nonimmigrants 
for D/S with the exception of those presenting a passport issued by the 
People's Republic of China.\46\
---------------------------------------------------------------------------

    \43\ See 38 FR 35425 (Dec. 28, 1973). See also 50 FR 42006 (Oct. 
17, 1985), stating that prior to the publication of this rule, I 
nonimmigrants were admitted for one year.
    \44\ See 8 CFR 214.2(i); 50 FR 42006 (Oct. 17, 1985).
    \45\ Id.
    \46\ 85 FR 27645 (May 11, 2020). Note that the requirements in 
the May 11, 2020 Final Rule do not apply to Hong Kong Special 
Administrative Region (SAR) or Macau SAR passport holders. This 
proposed rule updates the requirements to remove the exception for 
Hong Kong passport holders, who will be admitted in the same manner 
as those presenting a passport issued by the People's Republic of 
China.
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B. Risks to the Integrity of the F, J, and I Nonimmigrant 
Classifications

i. General Risks
    DHS welcomes F academic students, J exchange visitors, and I 
representatives of foreign information media, but it also acknowledges 
that the sheer size of the population complicates its oversight and 
vetting functions. Since legacy INS introduced D/S in 1979, the number 
of F nonimmigrant students admitted into the United States has more 
than quadrupled. Similarly, since D/S was introduced for J and I 
nonimmigrants in 1985, the number of exchange visitors admitted into 
the United States has more than quadrupled while the number of 
representatives of foreign information media has more than doubled.\47\
---------------------------------------------------------------------------

    \47\ As noted above, in fiscal year (FY) 2016, there were 
approximately 1.11 million F and J nonimmigrants residing in the 
United States. See DHS Office of Immigration Statistics (OIS) 
Population Estimates, Nonimmigrants Residing in the United States: 
Fiscal Year 2016 (March 2018), [USCIS: see edits] available at 
https://www.dhs.gov/sites/default/files/publications/Nonimmigrant_Population%20Estimates_2016_0.pdf (last visited Jan. 
22, 2020). In 2018, 48,405 aliens were admitted into the United 
States in I status. See DHS OIS 2018 Yearbook of Immigration Studies 
(Nov. 13, 2019) available at https://www.dhs.gov/immigration-statistics/yearbook/2018 (last visited Jan. 29, 2020).
---------------------------------------------------------------------------

    The Department uses the Student and Exchange Visitor Information 
System (SEVIS), a web-based system, to maintain information regarding: 
SEVP-certified schools; F-1 students studying in the United States (and 
their F-2

[[Page 60533]]

dependents); M-1 students enrolled in vocational programs in the United 
States (and their M-2 dependents); DOS-designated Exchange Visitor 
Program sponsors; and J-1 Exchange Visitor Program participants (and 
their J-2 spouses and dependents).
    Employees of educational institutions and program sponsors, 
specifically DSOs and ROs, play a large role in SEVIS. They are 
responsible for monitoring students and exchange visitors, accurately 
entering information about the students' and exchange visitors' 
activities into SEVIS, and properly determining whether the student or 
exchange visitor's SEVIS record should remain in active status or 
change to reflect a change in circumstances.\48\ Under this framework, 
an academic student or exchange visitor generally maintains lawful 
status by complying with the conditions of the program, as certified by 
the DSO or RO. However, a program extension and an extension of an 
alien's nonimmigrant stay are different. The Department believes it is 
appropriate for the DSO to recommend an extension of an academic 
program and an RO to recommend an extension of an exchange visitor 
program; however, an EOS involves an adjudication of whether an alien 
is legally eligible to extend his or her stay in the United States in a 
given immigration status and has been complying with the terms and 
conditions of his or her admission. The Department believes that the 
determinations of program extension and extension of stay should be 
separated, with the DSO's and RO's recommendation being one factor an 
immigration officer reviews while adjudicating an application for EOS. 
Changing to a fixed period of admission would give immigration officers 
a mechanism to make this evaluation at reasonably frequent intervals.
---------------------------------------------------------------------------

    \48\ 8 CFR 214.3(g)(1), (g)(2) (detailing a DSO's reporting 
requirements); 214.4(a)(2) (stating that failure to comply with 
reporting requirements may result in loss of SEVP certification).
---------------------------------------------------------------------------

    Additionally, DHS expects this change would deter and prevent 
fraud, as a requirement to check-in directly with an immigration 
officer inherently is likely to deter some bad actors from exploiting 
perceived vulnerabilities in the F and J nonimmigrant categories. The 
same benefits of direct evaluation, better recordkeeping, and fraud 
prevention also would apply to the I population.
ii. Risks to the F Classification
    While the F program provides enormous benefits to academic 
institutions and local communities, the Department is aware that the F-
1 program is subject to fraud, exploitation, and abuse. Since 2008, 
multiple school owners and others have been criminally prosecuted for 
``pay-to-stay'' fraud, in which school officials, in return for cash 
payments, falsely report that F-1 students who do not attend school are 
maintaining their student status.\49\ In some cases, convicted school 
owners operated multiple schools and transferred students among them to 
conceal the fraud.\50\ DHS is also concerned that DSOs at these schools 
were complicit in these abuses; some DSOs intentionally recorded a 
student's status inaccurately,\51\ some issued program extensions to 
students who did not have compelling medical or academic reasons for 
failing to complete their program by its end date,\52\ and some DSOs 
permitted students who failed to maintain status to transfer to another 
school rather than apply for reinstatement.\53\ Beyond cases publicly 
identified by DHS and the Department of Justice (DOJ), DHS is concerned 
about cases where DSOs were not aware of status violations by students.
---------------------------------------------------------------------------

    \49\ DOJ Press Release, ``Operator of English language schools 
charged in massive student visa fraud scheme,'' April 9, 2008, 
available at https://www.justice.gov/archive/usao/cac/Pressroom/pr2008/038.html (last visited Jan. 27, 2020); DOJ Press Release, 
``Owner/Operator and employee of Miami-based school sentenced for 
immigration-related fraud,'' Aug. 30, 2010, available at https://www.justice.gov/archive/usao/fls/PressReleases/2010/100830-02.html 
(last visited Jan. 27, 2020); ICE Press Release, ``Pastor sentenced 
to 1 year for visa fraud, ordered to forfeit building housing former 
religious school,'' June 13, 2011, available at https://www.ice.gov/news/releases/pastor-sentenced-1-year-visa-fraud-ordered-forfeit-building-housing-former-religious (last visited Jan. 27, 2020); DOJ 
Press Release, ``School Official Admits Visa Fraud,'' Mar. 12, 2012, 
available at https://www.justice.gov/archive/usao/pae/News/2012/Mar/tkhir_release.htm (last visited Jan. 27, 2020); ICE Press Release, 
``Owner of Georgia English language school sentenced for immigration 
fraud,'' May 7, 2014, available at https://www.ice.gov/news/releases/owner-georgia-english-language-school-sentenced-immigration-fraud (last visited Jan. 27, 2020); ICE Press Release, 
``3 senior executives of for-profit schools plead guilty to student 
visa, financial aid fraud,'' (last visited Jan. 27, 2020); Apr. 30, 
2015, available at https://www.ice.gov/news/releases/3-senior-executives-profit-schools-plead-guilty-student-visa-financial-aid-fraud (Jan. 27, 2020); ICE Press Release ``Owner of schools that 
illegally allowed foreign nationals to remain in US as `students' 
sentenced to 15 months in federal prison,'' Apr. 19, 2018, available 
at https://www.ice.gov/news/releases/owner-schools-illegally-allowed-foreign-nationals-remain-us-students-sentenced-15 (last 
visited Jan. 27, 2020).
    \50\ ICE Press Release, ``3 senior executives of for-profit 
schools plead guilty to student visa, financial aid fraud,'' April 
30, 2015, available at https://www.ice.gov/news/releases/3-senior-executives-profit-schools-plead-guilty-student-visa-financial-aid-fraud (last visited Jan. 27, 2020).
    \51\ DOJ Press Release, ``Operator of English language schools 
charged in massive student visa fraud scheme,'' April 9, 2008, see 
https://www.justice.gov/archive/usao/cac/Pressroom/pr2008/038.html; 
DOJ Press Release, ``Owner/Operator and employee of Miami-based 
school sentenced for immigration-related fraud,'' Aug. 30, 2010, see 
https://www.justice.gov/archive/usao/fls/PressReleases/2010/100830-02.html; ICE Press Release, ``Pastor sentenced to 1 year for visa 
fraud, ordered to forfeit building housing former religious 
school,'' June 13, 2011, see https://www.ice.gov/news/releases/pastor-sentenced-1-year-visa-fraud-ordered-forfeit-building-housing-former-religious; DOJ Press Release, ``School Official Admits Visa 
Fraud,'' Mar. 12, 2012, see https://www.justice.gov/archive/usao/pae/News/2012/Mar/tkhir_release.htm; ICE Press Release, ``Owner of 
Georgia English language school sentenced for immigration fraud,'' 
May 7, 2014, see https://www.ice.gov/news/releases/owner-georgia-english-language-school-sentenced-immigration-fraud; ICE Press 
Release, ``3 senior executives of for-profit schools plead guilty to 
student visa, financial aid fraud,'' Apr. 30, 2015, see https://www.ice.gov/news/releases/3-senior-executives-profit-schools-plead-guilty-student-visa-financial-aid-fraud; ICE Press Release ``Owner 
of schools that illegally allowed foreign nationals to remain in US 
as `students' sentenced to 15 months in federal prison,'' Apr. 19, 
2018, see https://www.ice.gov/news/releases/owner-schools-illegally-allowed-foreign-nationals-remain-us-students-sentenced-15.
    \52\ For example, DHS identified a nonimmigrant who has been an 
F-1 student at a dance school since 1991 and who has been issued 16 
program extensions since 2003, when the use of SEVIS was first 
mandated. Although the reported normal length of the program is 5 
years, the school has issued multiple program extensions by claiming 
that ``[t]he student needs more time'' despite 28 years of 
enrollment. In another concerning extension of an academic program, 
an F-1 student was enrolled at an accredited language training 
school from 2007 to 2020, requiring 15 program extensions. Another 
student who was enrolled at the same school from 2009 to 2020 and 
has been an F-1 student since 2005, was granted 14 program 
extensions. The school, which has had its SEVP-certification 
withdrawn, issued multiple program extensions for each student with 
the justification of ``[e]xtended studies.'' F-1 students in 
doctoral programs have taken over 20 years to complete their 
programs. F-1 students at community colleges have been enrolled in 
associate degree programs for periods in excess of 5 years--some for 
as long as a decade.
    \53\ ICE Press Release, ``3 senior executives of for-profit 
schools plead guilty to student visa, financial aid fraud,'' April 
30, 2015, see https://www.ice.gov/news/releases/3-senior-executives-profit-schools-plead-guilty-student-visa-financial-aid-fraud.
---------------------------------------------------------------------------

    Apart from concerns about DSOs and school owners involved in 
fraudulent schemes, DHS also has concerns about the actions of the 
aliens themselves. Some aliens have used the F classification to reside 
in the United States for decades by continuously enrolling in or 
transferring between schools, a practice facilitated by the D/S 
framework.\54\ DHS has identified aliens who have been in the United 
States in F-1 status since the 1990s and early 2000s, some of whom are 
in active F-1 status today. To extend their stay,

[[Page 60534]]

these aliens enrolled in consecutive educational programs, transferred 
to new schools, or repeatedly requested DSOs to extend their program 
end dates. This practice is not limited to any one particular type of 
school; students at community or junior colleges, universities, and 
language training schools have maintained F-1 status for lengthy 
periods. While these instances of extended stay may not always result 
in technical violations of the law, DHS is concerned that such stays 
violate the spirit of the law, given that student status is meant to be 
temporary and for the primary purpose of studying, not as a way to 
remain in the United States indefinitely.
---------------------------------------------------------------------------

    \54\ Monitoring F-1 students on post-completion OPT can be even 
more complicated because the students are no longer attending 
classes. See GAO, Student and Exchange Visitor Program, DHS Needs to 
Assess Risks and Strengthen Oversight of Foreign Students with 
Employment Authorization, GAO-14-356 (Washington, DC, Feb. 27, 
2014).
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    The use of the F classification to remain in the United States for 
decades raises doubts that the alien's intention was to stay in the 
United States temporarily, as required by the INA.\55\ It also raises 
concerns as to whether those aliens are bona fide nonimmigrant students 
who are maintaining valid lawful status by complying with the terms of 
their admission, which include solely pursuing a full course of study 
and progressing to completing a course of study. Likewise, it raises 
concerns as to whether these aliens have the financial resources to 
cover tuition and living expenses without engaging in unauthorized 
employment.
---------------------------------------------------------------------------

    \55\ See INA section 101(a)(15)(F)(i), 8 U.S.C. 
1101(a)(15)(F)(i).
---------------------------------------------------------------------------

    Further, while some school owners and school executives have faced 
legal consequences for their violation of the law, nonimmigrants 
admitted for D/S generally do not accrue unlawful presence for purposes 
of the 3- and 10-year bars described in INA 212(a)(9)(B) and (C), 8 
U.S.C. 1182(a)(9)(B) and (C) unless an immigration officer finds they 
have violated their status in the context of adjudicating an 
immigration benefit request, or an immigration judge orders them 
excluded, deported, or removed.\56\ Because F-1 nonimmigrant students 
are admitted for D/S, they generally do not file applications or 
petitions, such as extension of stay, with USCIS, and therefore, 
immigration officers do not generally have an opportunity to determine 
whether they are engaging in F-1 nonimmigrant activities in the United 
States and maintaining their F-1 nonimmigrant status.
---------------------------------------------------------------------------

    \56\ See USCIS Interoffice Memorandum, ``Consolidation of 
Guidance Concerning Unlawful Presence for Purposes of Sections 
212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act'' (May 6, 2009).
---------------------------------------------------------------------------

    The U.S. Government Accountability Office (GAO) has reported on 
DHS's concerns about DSOs and nonimmigrant students. In 2019, GAO and 
ICE published a report identifying fraud risks to SEVP related to 
managing school recertification and program training. The report 
included vulnerabilities associated with involving school owners and 
DSOs in overseeing the maintenance of status of F-1 students.\57\ In 
the report, GAO identified fraud vulnerabilities on the part of both 
students and schools. Examples include students claiming to maintain 
status when they are not, such as failing to attend class or working 
without appropriate authorization, or school owners not requiring 
enrolled students to attend classes or creating fraudulent 
documentation for students who are ineligible for the academic program. 
GAO recommended that ICE develop a fraud risk profile and use data 
analytics to identify potential fraud indicators in schools petitioning 
for certification, develop and implement fraud training for DSOs, and 
strengthen background checks for DSOs. ICE is making a concerted effort 
to comply with GAO's recommendations, and has implemented controls to 
address the fraud risks identified in the GAO report through stricter 
scrutiny during the SEVP school certification, recertification and 
compliance process.\58\
---------------------------------------------------------------------------

    \57\ In a 2019 report, GAO was asked to review potential 
vulnerabilities to fraud in the Student and Exchange Visitor 
Program. GAO examined, among other things, the extent to which ICE 
(1) implemented controls to address fraud risks in the school 
certification and recertification processes and (2) implemented 
fraud risk controls related to DSO training. See DHS Can Take 
Additional Steps to Manage Fraud Risks Related to School 
Recertification and Program Oversight, GAO-19-297: Published: Mar 
18, 2019 available at https://www.gao.gov/assets/700/697630.pdf; 
Overstay Enforcement: Additional Mechanisms for Collecting, 
Assessing, and Sharing Data Could Strengthen DHS's Efforts but Would 
Have Costs, GAO-11-411: Published Apr. 15, 2011. Available at 
https://www.gao.gov/assets/320/317762.pdf; and Student and Exchange 
Visitor Program: DHS Needs to Assess Risks and Strengthen Oversight 
Functions, GAO-12-572: Published June 18, 2012 available at https://www.gao.gov/assets/600/591668.pdf.
    \58\ Since publishing its 2019 report, GAO has updated its 
website to include comments to the Recommendations for Executive 
Action included therein. The comments indicate that ICE is in the 
process of addressing GAO's concerns and has taken steps to 
implement the report's recommendations, including making a public 
announcement regarding changing the timeline for the recertification 
notification process for schools. See U.S. Government Accountability 
Office, Student and Exchange Visitor Program: DHS Can Take 
Additional Steps to Manage Fraud Risks Related to School 
Recertification and Program Oversight, RECOMMENDATIONS, GAO.gov, 
https://www.gao.gov/products/GAO-19-297?mobile_opt_out=1#summary_recommend (last visited April 7, 2020).
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    DHS believes it can mitigate these fraud risks in part through, as 
this rule proposes, setting the authorized admission and extension 
periods for F nonimmigrants as the length of the F nonimmigrant's 
specific program, not to exceed a 2- or 4-year period. It would 
establish a mechanism for immigration officers to assess these 
nonimmigrants at defined periods (such as when applying for an 
extension of stay in the United States beyond a 2- or 4-year admission 
period) and determine whether they are complying with the conditions of 
their classification. Immigration officers receive background checks, 
clearances, and training before DHS authorizes them to implement the 
nation's immigration laws, which includes as part of adjudicating the 
application, whether nonimmigrants meet the requirements to extend 
their stay, whether a student has violated his or her nonimmigrant 
status without the DSO's awareness or whether DSOs are engaging in 
fraud by not requiring students to attend classes or by falsifying 
documents. Immigration officers are further trained to assess 
applications for fraud indicators, and conduct reviews and vetting that 
may assist in the detection of fraud or abuse. This would allow DHS to 
identify and hold accountable aliens who violate their F-1 status and 
their educational institutions. Under the current D/S framework, DHS 
might not detect an individual F-1 status violation for an extended 
period if the student stays enrolled in a school, does not seek 
readmission to the United States, and does not apply for additional 
immigration benefits. If DHS makes periodic assessments to verify that 
F-1 students are maintaining their student status, DHS could better 
detect and mitigate against these violations as well as violations by 
their school.\59\ The proposed rule creates opportunities for this 
scrutiny if these nonimmigrants wish to remain beyond their fixed 
period of admission. This may also have the effect of deterring actors 
who would otherwise seek to come to the United States and engage in 
some of the behaviors discussed above, believing they would be able to 
do so undetected for long periods of time. DHS believes this is a more 
appropriate way to maintain the integrity of the U.S. immigration 
system. Additionally, the Department believes that the proposed changes 
would allow immigration officers to directly verify, among other 
things, that students applying for an EOS: Have the funds needed to 
live and study in the United States without

[[Page 60535]]

engaging in unauthorized work; are maintaining a residence abroad to 
which they intend to return; have pursued and are pursuing a full 
course of study; and are completing their studies within the 4 year 
generally applicable timeframe relating to their post-secondary 
education programs in the United States or are able to provide a 
permissible explanation for taking a longer period of time to complete 
the program.
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    \59\ For example, SEVP may withdraw a school's certification or 
deny a school's recertification if a DSO issues a false statement, 
including wrongful certification of a statement by signature, in 
connection with a student's school transfer or application for 
employment or practical training. See 8 CFR 214.4(a)(2)(v).
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    Finally, the D/S framework, because it reduces opportunities for 
direct vetting of foreign academic students by immigration officers, 
creates opportunities for foreign adversaries to exploit the F-1 
program and undermine U.S. national security. An open education 
environment in the United States offers enormous benefits, but it also 
places research universities and the nation at risk for economic, 
academic, or military espionage by foreign students. Foreign 
adversaries are using progressively sophisticated and resourceful 
methods to exploit the U.S. educational environment, including well-
documented cases of espionage through the student program.\60\ 
Detecting and deterring emerging threats to U.S. national security 
posed by adversaries exploiting the F-1 program requires additional 
oversight. DHS believes that replacing admissions for D/S for F-1 
students with admission for a fixed time period would help mitigate 
these national security risks by ensuring an immigration official 
directly and periodically vets applicants for extensions of stay and, 
in so doing, confirms they are engaged only in activities consistent 
with their student status. F-1 nonimmigrants applying for EOS will also 
be required to establish they are admissible, and failure to do so will 
result in denial of the EOS. Admissibility grounds are complex and are 
properly assessed by a trained DHS officer. Such an assessment is not 
currently made when F-1 nonimmigrants apply for an extension of their 
program with their institution.\61\ Significantly, under the proposed 
changes to the period of admission of F nonimmigrants and the 
applicable EOS process, DHS would collect biometrics and other 
information (such as evidence of financial resources to cover expenses 
and evidence of criminal activity) from F nonimmigrant students more 
frequently, thereby enhancing the Government's oversight and monitoring 
of these aliens.
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    \60\ In Dec. 2019, Weiyn Huang, the owner of Findream and 
Sinocontech pleaded guilty to conspiracy to commit visa fraud in the 
U.S. District Court in Chicago. In return for payments, Findream 
listed aliens as OPT workers, providing them with what appeared to 
be legal status. The FBI has charged one of those aliens with 
spying. See https://media.nbcbayarea.com/2019/09/KellyHuangCriminalComplaint.pdf. This vulnerability presented in the 
nonimmigrant student category has been highlighted by the FBI. In a 
2018 hearing before the Senate Intelligence Committee, the FBI 
Director testified about the threat from China noting, ``that the 
use of nontraditional collectors, especially in the academic 
setting, whether it's professors, scientists, students, we see in 
almost every field office that the FBI has around the country. It's 
not just in major cities. It's in small ones as well. It's across 
basically every discipline. I think the level of naivet[eacute] on 
the part of the academic sector about this creates its own issues. 
They're exploiting the very open research and development 
environment that we have, which we all revere, but they're taking 
advantage of it. So, one of the things we're trying to do is view 
the China threat as not just a whole of government threat, but a 
whole of society threat on their end. I think it's going to take a 
whole of society response by us. So, it's not just the intelligence 
community, but it's raising awareness within our academic sector, 
within our private sector, as part of the defense.'' See Senate 
Select Committee on Intelligence Hearing (Feb. 13, 2018), transcript 
available at https://www.intelligence.senate.gov/hearings/open-hearing-worldwide-threats-0#. See also Foreign Threats to Taxpayer--
Funded Research: Oversight Opportunities and Policy Solutions: 
Hearing before the Senate Finance Committee (2019) (Statement of 
Louis A. Rodi III). DSOs are not trained immigration officers nor 
are they in a position to make such determinations.
    \61\ In addition, DSOs may not be aware of a student's failure 
to maintain status, including engaging in criminal activity, nor do 
they have the authority or ability to acquire such information. 
Admitting F-1s for a fixed period of admission would provide trained 
immigration officers with the opportunity to vet these individuals.
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iii. Risks to the J Classification
    DHS believes that the national security risks posed by D/S 
admissions for individuals admitted under the J classification are 
similar to those posed by the F classification.\62\ According to a 
December 2018 report by a panel of experts commissioned by the National 
Institutes of Health (NIH) to study foreign influence on federally-
funded scientific research, ``Small numbers of scientists have 
committed serious violations of NIH's policies and systems by not 
disclosing foreign support (grants), laboratories, or funded faculty 
positions in other countries.'' \63\ There are multiple examples of 
these ongoing national security threats. For example, in September 
2019, a stark illustration of state-sponsored efforts to illegally 
obtain U.S. technology emerged when the FBI charged Chinese government 
official Liu Zhongsan with conspiracy to fraudulently procure U.S. 
research scholar visas for Chinese officials whose actual purpose was 
to recruit U.S. scientists for high technology development programs 
within China.\64\ Additionally, in December 2019, a 29-year-old 
graduate student in J-1 status participating in an exchange visitor 
program at Harvard University was stopped at Boston Logan International 
Airport. Federal agents determined he was a ``high risk for possibly 
exporting undeclared biological material'' after finding 21 vials of 
brown liquid wrapped in a plastic bag inside a sock in his checked 
luggage; typed and handwritten notes indicated ``that [the exchange 
visitor] . . . was knowingly gathering and collecting intellectual 
property . . . possibly on behalf of the Chinese government.'' \65\ 
Recently, in June 2020, a Chinese national who entered the United 
States on a J-1 visa to conduct research at the University of 
California, San Francisco (UCSF) was arrested at Los Angeles 
International Airport while attempting to return to China, and charged 
with visa fraud. According to court documents, he allegedly is an 
officer with the People's Republic of China's (PRC) People's Liberation 
Army and provided fraudulent information about his military service in 
his visa application. He allegedly was instructed by his military lab 
supervisor to bring back to China information about the lab at 
UCSF.\66\
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    \62\ In its 2019 Report to Congress, the U.S.-China Economic and 
Security Review Commission, the Commission described the U.S. 
Government's efforts to curb China's extensive influence and 
espionage activities in academic and commercial settings. The 
Commission noted that these efforts took the form of visa 
restrictions for Chinese nationals, greater scrutiny of federal 
funding awarded to universities, legal action against those 
suspected of theft or espionage, and new legislation. See U.S.-China 
Economic And Security Review Commission, 2019 Annual Report to 
Congress (Nov. 2019) available at https://www.uscc.gov/annual-report/2019-annual-report.
    \63\ U.S. National Institutes of Health Advisory Committee to 
the Director (ACD), ACD Working Group for Foreign Influences on 
Research Integrity, Dec. 2018, discussing measures to address 
concerns about foreign influences related to graduate students and 
post-doctoral fellows, as well as foreign employees.
    \64\ U.S. Department of Justice, Chinese Government Employee 
Charged in Manhattan Federal Court with Participating in Conspiracy 
to Fraudulently Obtain U.S. Visas, Sept. 16, 2019.
    \65\ See https://www.bostonherald.com/2019/12/30/peoples-republic-of-china-may-be-behind-theft-of-bio-samples-by-harvard-sponsored-chinese-student-feds-say/. See also https://www.thedailybeast.com/china-might-be-behind-harvard-student-zaosong-zhengs-theft-of-cancer-research-feds-claim.
    \66\ U.S. Department of Justice, Officer of China's People's 
Liberation Army Arrested At Los Angeles International Airport, June 
11, 2020, https://www.justice.gov/usao-ndca/pr/officer-china-s-people-s-liberation-army-arrested-los-angeles-international-airport, 
(last accessed June 20, 2020).
---------------------------------------------------------------------------

    Exchange visitor program categories include college and university 
students, which share similarities with the F-1 nonimmigrant 
classification. Students enrolled in such programs are pursuing post-
secondary studies alongside F-1 nonimmigrants. J-1 college and

[[Page 60536]]

university students in a degree program may be authorized to 
participate in the exchange visitor program so long as they meet the 
requirements for duration of participation, including pursuing a full 
course of study, echoing the full course of study requirements for F-1 
nonimmigrants. Their programs may also be extended by the ROs, subject 
to regulation and/or approval by DOS, without an application to DHS. 
These similarities give rise to the same concerns related to F-1s about 
national security, as described above, and about fraud and abuse by J-
1s and their ROs. By requiring the same fixed period of admission for 
F-1s and J-1s, J-1 college and university students in exchange visitor 
programs would be unable to circumvent the intent of this proposed 
rule, which is to protect the integrity of these programs and provide 
additional protections and mechanisms for oversight. Because J exchange 
visitors are also tracked in SEVIS, DHS believes it would be more 
effective for an immigration officer to periodically confirm that an 
alien has properly maintained status, rather than relying on the checks 
of an RO that the J-1 is pursuing the activities permitted by the 
exchange visitor program. As noted above, DHS believes it is more 
appropriate for immigration officers, with their background checks, 
clearances, and training from the U.S. government, to adjudicate 
maintenance of nonimmigrant status and whether an alien is eligible for 
an additional admission period. Switching from D/S to a fixed period of 
admission would permit immigration officers the opportunity to 
determine whether an alien is eligible for an additional period of 
time. If an officer finds a violation of status while adjudicating the 
alien's request, the consequences could be immediate. Applicants for 
EOS must also establish that they are admissible, and failure to do so 
will result in denial of the EOS.\67\ Admissibility grounds are complex 
and are properly assessed by a trained DHS officer. Such an assessment 
is not currently made when J exchange visitors apply for an extension 
of their program with their RO.\68\ Thus, admitting J exchange visitors 
for a fixed time period, instead of for D/S, would give DHS more 
frequent opportunities to directly vet these foreign visitors and 
ensure they are bona fide exchange visitors. Under the proposed changes 
to the period of admission of J exchange visitors and the applicable 
EOS process, DHS would more frequently collect biometrics and other 
information from J exchange visitors, enhancing the Government's 
oversight and monitoring of these aliens.
---------------------------------------------------------------------------

    \67\ See 8 CFR 214.1(a)(3).
    \68\ ROs may not be aware of a student's failure to maintain 
status, including engaging in criminal activity. Admitting J-1s for 
a fixed period of admission would provide trained DHS officers with 
the opportunity to vet these individuals.
---------------------------------------------------------------------------

iv. Risks to the I Classification
    Admitting I nonimmigrants for duration of status affords them 
different treatment from most other nonimmigrants, who are admitted for 
a specified period of time. The Department believes admitting aliens 
temporarily in the United States for a fixed period would strengthen 
vetting and information collection and help immigration officers ensure 
that the I nonimmigrants are, and will be, engaged in activities that 
are permissible under INA 101(a)(15)(I). In addition, this rulemaking 
proposes to require individuals who wish to remain in I nonimmigrant 
status beyond the end date for their authorized stay to apply for an 
EOS with USCIS, at which point immigration officers can review their 
activities in the United States. It also clarifies what DHS would 
require these individuals to present as evidence supporting their EOS 
request.\69\
---------------------------------------------------------------------------

    \69\ These proposed changes, including additional evidence 
relating to foreign media organizations and activities the alien 
intends to engage in while in I status, would also apply to a 
nonimmigrant in the United States who requests to change his/her 
nonimmigrant status to that of an I nonimmigrant.
---------------------------------------------------------------------------

IV. Discussion of the Proposed Rule

    All persons arriving at a port-of-entry to the United States must 
be inspected by a CBP officer and must apply for admission into the 
United States with CBP.\70\ In the case of an alien, a CBP officer 
determines whether an alien is eligible for admission and, if they are, 
issues the Form I-94, Arrival/Departure Record with the nonimmigrant 
category and period of admission.\71\ For the vast majority of aliens, 
their Form I-94 includes a specific date through which their status is 
valid; they must depart the United States on or before that date. An 
alien who wishes to lawfully remain in the United States in the same 
status past that date generally must apply for an EOS with USCIS.
---------------------------------------------------------------------------

    \70\ 8 CFR 235.
    \71\ The Form I-94 is used by the U.S. Government to track 
arrivals and departures of nonimmigrants. Originally the form was 
designed in two parts--one for the Government and one for the 
nonimmigrant. The second part would be stapled into the 
nonimmigrant's passport and then removed upon departure. The form is 
now maintained electronically and can be accessed by nonimmigrants 
by downloading it from the CBP website. See I-94 website, U.S. 
Customs and Border Protection, https://i94.cbp.dhs.gov/I94/#/recent-search (last visited Dec. 9, 2019).
---------------------------------------------------------------------------

    However, as described above, certain nonimmigrant categories, 
including F academic students, J exchange visitors, and I 
representatives of foreign information media, and their dependents, may 
be admitted into the United States for D/S instead of a period of time 
with a specific departure date. DHS is proposing changes to the 
admission provisions for these particular nonimmigrant classifications, 
including replacing admissions for ``duration of status'' with a fixed 
admission period. This would enable immigration officers to 
independently and directly verify the continued eligibility of foreign 
visitors in F, J, or I nonimmigrant status. It would also require 
aliens who fall under certain criteria to apply more frequently for 
additional admission periods.

A. General Period of Admission for F and J Nonimmigrants

    As a foundational matter, DHS proposes to add a new paragraph 
explaining the period of admission for nonimmigrants described in 
section 101(a)(15)(F) and (J) who are seeking admission after 
[effective date of the final rule]. In formulating this proposed rule, 
DHS considered and addressed various circumstances that might apply 
when F and J nonimmigrants apply for admission at a POE.
i. Application for Admission in F or J Nonimmigrant Status
    Aliens applying for an admission in either F or J status who, under 
this proposal, would be eligible to be admitted for the length of time 
indicated by the program end date noted in their Form I-20 or DS-2019, 
not to exceed 4 years, unless they are subject to a 2-year admission 
proposed in 8 CFR 214.2(f)(20) or (j)(6), plus a period of 30 days 
following their program end date, to prepare for departure or to 
otherwise seek to obtain lawful authorization to remain in the United 
States. See proposed 8 CFR 214.1(a)(4)(i)(A) and (ii)(A).
ii. Application for Admission in the Same Status Following Departure 
From the United States
a. Aliens With Pending Extension of Stay Applications at Time of 
Application for Admission Whose Previous Period of Authorized Stay Has 
Expired
    Aliens who departed the United States and are applying for 
admission before their timely filed EOS application has been 
adjudicated, but after their previously authorized period of stay has

[[Page 60537]]

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

[[Page 60538]]

reliance on this policy, some F and J nonimmigrants admitted for D/S 
may not have taken the appropriate steps to maintain status, otherwise 
change status, or depart the United States. This proposed rule is 
concerned with providing adequate notice to allow F and J nonimmigrants 
who are maintaining status to transition to a new date-certain 
admission.
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    \72\ See ``Consolidation of Guidance Concerning Unlawful 
Presence for Purposes of Sections 212(a)(9)(b)(i) and 
212(a)(9)(c)(i)(I) of the Act'', May 6, 2009, available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF (last accessed 
June 20, 2020). The policy reflected by this memorandum currently 
applies to F, J, and I nonimmigrants in relation to duration of 
status but will change accordingly when duration of status no longer 
applies to them.) ICE does not make findings of status violations 
that result in the accrual of unlawful presence.
---------------------------------------------------------------------------

    Although some F and J nonimmigrants may have program end dates 
longer than 4 years, DHS believes that using the program end date on 
the Form I-20 or DS-2019, up to 4 years from the effective date of the 
final rule, as the fixed date of admission best aligns with the normal 
progress these nonimmigrants should be making. This alignment is based 
on the general structure of post-secondary education in the United 
States. According to the Department of Education (ED), students can 
normally earn a bachelor's degree in 4 years.\73\ The total number of 
F-1 students pursuing a bachelor's degree in 2018 was 522,155, 
constituting almost 40 percent of the 2018 nonimmigrant student 
population. The total number of F-1 students pursuing a master's 
degree, generally 2-year programs, in 2018 was 498,625, representing 
almost 38 percent of the nonimmigrant student population. Taken 
together, this population represents almost 80 percent of the 
nonimmigrant students in the United States. Therefore, DHS believes 
that a 4-year period of admission would not pose an undue burden on 
them, because many F and J nonimmigrants would complete their studies 
within a 4-year period, and not have to request additional time from 
DHS.\74\ The smaller proportion of students not pursuing a bachelor's 
or master's degree are enrolled in different programs, which may last 
more or less than 4 years.\75\ As a significantly smaller percentage of 
students are engaged in programs which may last longer than 4 years, 
DHS considered that the proposed framework would accommodate many 
students, creating a less burdensome process.
---------------------------------------------------------------------------

    \73\ See the Mobile Digest of Education Statistics, 2017, ``The 
Structure of American Education,'' available at https://nces.ed.gov/programs/digest/mobile/The_Structure_of_American_Education.aspx 
(last visited Feb. 4, 2020).
    \74\ See the Student and Exchange Visitor Program (SEVP), ``2018 
SEVIS by the Numbers Report'' available at https://www.ice.gov/doclib/sevis/pdf/sevisByTheNumbers2018.pdf (last visited Feb. 4, 
2020).
    \75\ Other programs include Associate's degrees, language 
training programs, and Ph.D.s., among others. Id.
---------------------------------------------------------------------------

    The proposed 4-year period of admission would not apply to all F 
and J nonimmigrants. DHS believes a shorter admission period, up to 2 
years, would be appropriate for a subset of the F and J population due 
to heightened concerns related to fraud, abuse, and national security, 
as discussed below. See proposed 8 CFR 214.2(f)(20) and (j)(6). For 
this subset of the F and J population, DHS believes that a 2-year 
maximum period of admission would be appropriate. This would give the 
Department an opportunity to verify that they are complying with the 
terms and conditions of their status more frequently and thereby better 
address any national security concerns. Using this risk-based approach, 
which focuses on certain factors predetermined by DHS and presented by 
some aliens, DHS anticipates that most F and J nonimmigrants would not 
need to file an EOS application at some point during their stay, and 
DHS consequently could allocate its resources more efficiently.
    Before arriving at the 2- and 4-year admission periods, DHS 
considered various options. DHS considered a standard 1-year admission 
for all F and J nonimmigrants. This option would treat all 
nonimmigrants with F and J status equally and would likely allow for 
easier implementation by CBP at the POEs. Nevertheless, it could result 
in significant costs to nonimmigrants and the Department. There are 
more than 1 million F students enrolled in programs of study that last 
longer than 1 year.\76\ With a 1-year admission period, students and 
exchange visitors participating in programs of greater duration would 
need to apply for additional time. This would be a significant cost to 
students and exchange visitors, and DHS is particularly mindful of 
those who comply with the terms and conditions of their admission and 
participate in programs, such as undergraduate programs, that typically 
require several years to complete.
---------------------------------------------------------------------------

    \76\ See the Student and Exchange Visitor Program (SEVP), ``2018 
SEVIS by the Numbers Report'' available at https://www.ice.gov/doclib/sevis/pdf/sevisByTheNumbers2018.pdf (last visited Feb. 4, 
2020).
---------------------------------------------------------------------------

    Another alternative DHS considered was to admit all F and J 
nonimmigrants to their program end date, not to exceed 3 years. This 
option would give the Department more frequent direct check-in points 
with nonimmigrants than a 4-year maximum period of admission would. 
However, DHS was concerned it would unduly burden many F and J 
nonimmigrants. As discussed above, 4 years best accounts for the normal 
progress for most programs. Even considering those F or J nonimmigrants 
who are admitted into the U.S. after having already completed a portion 
of their program outside of the U.S., instituting a 3-year maximum 
period of stay would have required each nonimmigrant pursuing a 4 year 
program to extend, while 4 years allows additional time to complete a 
4-year degree. This alternative also would place greater administrative 
burdens on USCIS and CBP compared to the proposed 4-year maximum period 
of admission. USCIS would have to adjudicate EOS applications more 
frequently, and CBP's workload would increase as individuals would 
travel to request admission at the POE, with a 3-year maximum period of 
stay than a 4-year one. Therefore, DHS believes an admission for the 
program end date, not to exceed 4 years (except for limited exceptions 
that would limit admissions to 2 years) is the best option. DHS 
welcomes comments on this proposal.

B. Automatic Extension of Visa Validity at Port of Entry

    DHS proposes to change the admission language in the provision 
relating to extension of visa validity from ``shall'' to ``may'' 
clarifying that CBP always maintains the discretion to determine 
whether to admit an alien and for the period of admission. This change 
removes any ambiguity about whether CBP has an absolute duty to admit 
an alien to clarify that CBP has the discretion to admit an alien for a 
certain period of time. See proposed 8 CFR 214.1(b)(1).
    DHS proposes technical revisions to the visa revalidation 
provisions that allow certain F, J, and M nonimmigrants to apply for 
readmission if eligible for admission as an F, J, or M nonimmigrant and 
if they are applying for readmission after an absence from the United 
States not exceeding thirty days solely in contiguous territory or 
adjacent islands. See 8 CFR 214.1(b). Such technical revisions include 
updating language to clarify that ``visa revalidation'' refers to 
automatic extension of visa validity at the port of entry. These 
provisions apply when, for example, a nonimmigrant finds himself or 
herself applying for reentry after going to Mexico on spring break 
without realizing that his or her visa had expired. Instead of having 
to get a new visa, CBP can readmit the nonimmigrant

[[Page 60539]]

whose visa validity is automatically extended by operation of 
Department of State regulations. See 22 CFR 41.112(d). DHS does not 
believe it is necessary to make a nonimmigrant get a new visa under 
these circumstances.
    DHS proposes minor technical updates to account for inaccurate or 
no longer applicable terms and cites: First, DHS proposes to strike the 
reference to INA 101(a)(15)(Q)(ii) and reserve it, as that program no 
longer exists and is no longer in the INA.\77\ See proposed 8 CFR 
214.1(b)(1)-(3). Second, DHS proposes to update the cross reference to 
22 CFR, from 22 CFR 41.125(f) to 22 CFR 41.112(d), which is the current 
provision describing automatic extension of visa validity at ports of 
entry. Third, DHS proposes to strike the reference to ``duration of 
status'' in 8 CFR 214.1(b)(1).
---------------------------------------------------------------------------

    \77\ See Irish Peace Process Cultural and Training Program Act 
of 1998, Public Law 105-319, 112 Stat. 3013 (Oct. 30, 1998), as 
amended by Public Law 108-449, 114 Stat. 1526 (Dec. 10, 2004).
---------------------------------------------------------------------------

C. Extension of Stay (EOS)

    This proposed rule would not create a new form for an EOS 
application; however, USCIS is in the process of transitioning from 
paper-based to electronic form processing and some form names and 
numbers may change. While DHS plans to update existing forms allowing 
F, J, and I nonimmigrants to apply for an EOS with USCIS, DHS believes 
it would be more efficient to replace references to specific form names 
and numbers throughout the current regulations with generally 
applicable language, specifically, ``extension request in the manner 
and on the form prescribed by USCIS, together with the required fees 
and all initial evidence specified in the applicable provisions of 8 
CFR 214.2, and in the form instructions, including any biometrics 
required by 8 CFR 103.16.''
    Using general language in the regulatory text instead of referring 
to specific form names and numbers helps both the Department and 
stakeholders. It allows for technical changes without requiring an 
entirely new rulemaking to update form names. Stakeholders would 
receive notice and specific guidance on USCIS' website and in the 
appropriate form instructions, as they already do for various other 
benefits. Therefore, DHS proposes to use this language in 8 CFR 
214.1(c)(2) and to strike the current phrase exempting F and J 
nonimmigrants from the requirement to file an EOS, as they would be 
required to file an EOS if they wish to remain in the United States 
beyond their specified date of admission. See proposed 8 CFR 
214.1(c)(2).
    Like the technical updates to strike the specific form name from 8 
CFR 214.1(c)(2), DHS is proposing to strike the references to forms 
``I-129'' and ``I-539'' in 8 CFR 214.1(c)(5), replacing those specific 
form numbers with the aforementioned general language. See proposed 8 
CFR 214.1(c)(5). The substance of that provision, including the 
language that does not allow an alien to appeal an EOS denial would 
remain the same.
    Additionally, DHS proposes to strike ``other than as provided in 
214.2(f)(7)'' from 8 CFR 214.1(c)(3)(v) to make it clear students must 
apply for an EOS. This requirement would not apply to other 
nonimmigrants admitted for D/S, such as A-1 or A-2 representatives of 
foreign governments and their immediate family members; they would 
remain ineligible to file an EOS.
    As part of the EOS application, USCIS requires biometric collection 
and will require such collection from F, J, and I nonimmigrants under 
the proposed rule. USCIS has the general authority to require and 
collect biometrics (such as fingerprints, photograph, and or a digital 
signature) from applicants, petitioners, sponsors, beneficiaries, or 
other individuals residing in the United States for any immigration and 
naturalization benefit. See 8 CFR 103.16, and 103.2(b)(9). Biometric 
collection helps USCIS confirm an individual's identity and conduct 
background and security checks. Further, USCIS may also require any 
applicant, petitioner, sponsor, beneficiary or individual filing a 
benefit request, or any group or class of such persons submitting 
requests to appear for an interview. See 8 CFR 103.2(b)(9). USCIS may 
require such an interview as part of USCIS' screening and adjudication 
process that helps confirm an individual's identity, elicit information 
to assess the eligibility for an immigration benefit, and screen for 
any national security or fraud concerns.
    Finally, DHS considered how to address the admission of F, J, and I 
nonimmigrants who timely filed an EOS and any corresponding 
applications for employment authorization but left the United States 
before receiving a decision from USCIS. DHS anticipates this scenario 
would apply mostly to F-1 students applying for post-completion OPT and 
STEM OPT extensions.
    While USCIS generally does not consider an application for EOS 
abandoned when the nonimmigrant leaves the United States,\78\ DHS 
recognizes the potential for conflict if a nonimmigrant receives 
authorization from both CBP and USCIS for what amounts to the same 
request (a specific period of time to pursue authorized activities).
---------------------------------------------------------------------------

    \78\ See Memo, Cook, Acting Asst. Comm. Programs, HQ 70/6.2.9 
(June 18, 2001), reprinted in 70 No. 46 Interpreter Releases 1604, 
1626 (Dec. 6, 1993).
---------------------------------------------------------------------------

    Where an alien in F, J, or I status timely files an application for 
EOS, leaves the United States before USCIS approves that EOS 
application, and applies for admission to continue his or her 
activities for the balance of the previously authorized admission 
period, USCIS would not consider the EOS application abandoned. See 
proposed 8 CFR 214.1(c)(6)(i). In such circumstances, the pending EOS 
would remain relevant and ultimately determine the alien's fixed date 
of admission.
    However, where the alien leaves the United States and applies for 
admission while his or her EOS application is pending and is admitted 
with a Form I-20 or DS-2019 for a program end date beyond their 
previously authorized period of admission, the pending EOS is deemed 
abandoned, and the admit until date provided by CBP on the alien's Form 
I-94 governs. See proposed 8 CFR 214.1(c)(6)(ii). This is because, in 
these cases, CBP's grant of a new period of authorized stay would 
supersede the pending EOS application seeking a period of authorized 
stay, rendering it superfluous.
    The Department considered a policy whereby an F, J, or I 
nonimmigrant would automatically abandon an EOS application upon 
departing the United States. However, the Department believes such a 
strict requirement would not be practical, because people cannot always 
predict when they will have to travel.
    Regarding applications for employment authorization for F-1s and J-
2s, CBP does not adjudicate applications for employment authorization. 
USCIS would continue processing any such applications, notwithstanding 
a departure, and, if the application is approved, USCIS will not issue 
an EAD with a validity date that exceeds the fixed date of admission 
provided to the alien at the POE. For example, an F-1 student wishing 
to engage in post-completion or a STEM OPT extension would need to file 
both an EOS application and an application for employment 
authorization. Where the alien had departed the United States before 
his or her application are

[[Page 60540]]

adjudicated, USCIS would not consider the employment authorization 
application abandoned.
    In all events, when an F-1 or a J-2 nonimmigrant travels while the 
employment authorization or EOS application is pending, he or she is 
still expected to respond to any Request for Evidence (RFE) and to 
timely submit the requested documents. Because USCIS only sends RFEs to 
U.S. addresses, aliens traveling outside the United States while 
applications are pending are advised to make necessary arrangements to 
determine whether they have received an RFE relating to their 
application and to timely respond to any RFE.\79\ Failure to do so 
could result in USCIS denying an employment authorization or EOS 
application for abandonment.
---------------------------------------------------------------------------

    \79\ See SEVP's Study in the States web page, ``Traveling as an 
International Student'' available at https://studyinthestates.dhs.gov/traveling-as-an-international-student (last 
visited Jan. 9, 2020). See also ICE's Re-entry for F-1 Non-
immigrants Travelling Outside the United States for Five Months or 
Fewer web page, which notes, ``Can I reenter if my request for OPT 
is pending? Yes, but traveling during this time should be undertaken 
with caution. USCIS may send you a request for evidence while you 
are away, however, so you would want to make sure you have provided 
a correct U.S. address both to your DSO and on the application and 
would be able to send in requested documents. Also, if USCIS 
approves your OPT application, you will be expected to have your EAD 
in hand to re-enter the United States. Like a request for further 
information, USCIS can only send the EAD to your U.S. address,'' 
available at https://www.ice.gov/sevis/travel (last visited Jan. 9, 
2020).
---------------------------------------------------------------------------

D. Transition Period

i. F and J Nonimmigrants
    DHS proposes to generally allow all F and J nonimmigrants present 
in the United States on [the Final Rule's effective date], who are 
validly maintaining that status and who were admitted for D/S, to 
remain in the United States in F or J status, without filing an EOS 
request, up to the program end date reflected on their Form I-20 or DS-
2019 that is valid on the Final Rule's effective date, not to exceed 4 
years from the effective date of the Final Rule, plus an additional 60 
days for F nonimmigrants and 30 days for J nonimmigrants. An alien who 
departs the United States and seeks admission after the Final Rule's 
effective date becomes subject to the fixed date framework imposed by 
this rule. See proposed 8 CFR 214.1(m)(1).
    F and J nonimmigrants who depart the United States after the rule's 
effective date and before the end date reflected on their Form I-20 or 
DS-2019 would be readmitted with a new fixed admission period, like any 
other newly admitted F or J nonimmigrant, as provided for in proposed 8 
CFR 214.1(a)(4). Aliens whose admission period is converted from D/S to 
a fixed period who would like to seek additional time to complete their 
studies, including those requesting post-completion OPT or STEM OPT 
extensions or starting a new course of study or exchange visitor 
program, would need to file an EOS application with USCIS for an 
admission period up to the new program end date listed on the Form I-20 
or DS-2019, or successor form, reflecting such an extension or 
transfer, up to a maximum of 4-years, or 2 years, as appropriate. See 
proposed 8 CFR 214.1(m)(1) and 8 CFR 214.2(f)(20).
    Regarding pending applications for employment authorization during 
the transition period, aliens in F status who are subject to the 
transition and who are seeking post-completion OPT and STEM-OPT 
employment authorization would be authorized to remain in the United 
States while the application is pending with USCIS if: (1) They are in 
the United States on the effective date of the final rule with 
admission for D/S; (2) they properly filed an application for 
employment authorization; and (3) their application is pending on the 
final rule's effective date. Unless otherwise advised by USCIS, they 
would not have to file for an EOS or re-file an application for 
employment authorization. See proposed 8 CFR 214.1(m)(2). If the 
application for employment authorization is approved, the F-1 will be 
authorized to remain in the United States in F status until the 
expiration date of the employment authorization document, plus 60 days 
as provided in their previous admission. If the employment application 
is denied, the F-1 would continue to be authorized to remain in the 
United States until the program end date listed on their Form I-20, 
plus 60 days as provided in their previous admission, as long as he or 
she continues to pursue a full course of study and otherwise meets the 
requirements for F-1 status.
    Aliens in F-1 status with pending employment authorization 
applications, other than post-completion OPT and STEM OPT, also do not 
need to file for an extension or refile an employment authorization 
application. As long as these F-1s continue to pursue a full course of 
study and otherwise meet the requirements for F-1 status, they continue 
to be authorized to remain in the United States until the program end 
date listed on the Form I-20, plus 60 days, regardless of whether the 
employment authorization is approved or denied.
    DHS believes that this transition proposal would not be 
unreasonably burdensome on F and J nonimmigrants. Many would be able to 
complete their programs per the terms of their initial admission (D/S) 
using the original program end date as an expiration of their 
authorized period of stay. DHS would grant such periods, which include 
an additional 60 days for Fs and 30 days for Js as provided in their 
previous admission, automatically without an application or fee. With 
this option, DHS believes that the majority of F and J nonimmigrants 
will be shifted to a fixed period of admission of 4 years or less, 
except for some F-1 students and J-1 exchange visitors. For example, J-
1 research scholars and alien physicians who have program end dates for 
up to 5 or 7 years respectively, would need to apply for an EOS before 
the 4-year maximum period of stay expires, i.e., the date that falls 
four years after the rule becomes effective.
    Another benefit of this option is that it would enable DHS to 
transition F and J nonimmigrants to an admission for a fixed time 
period without unduly burdening them, USCIS or CBP. This option would 
ensure that no F and J nonimmigrants remain in the United States 
indefinitely by requiring all F and J nonimmigrants admitted for D/S 
who wish to extend their stay beyond their program end date or the four 
year maximum, whichever is applicable, to either file an EOS request or 
depart the United States and apply for admission at a POE by their 
program end date or the four year maximum period of stay from the final 
rule's effective date, plus an additional 60 days for Fs, and 30 days 
for Js.
    In proposing these transition procedures, DHS took into 
consideration the effect of transitioning to a fixed period of 
admission will have on F and J nonimmigrants originally admitted for D/
S who chose to temporarily come to the United States to pursue a 
program of study or an exchange visitor program. DHS believes the 
proposed changes would not significantly affect the reliance interests 
of these nonimmigrants admitted for D/S. DHS is not proposing to change 
the fundamental requirements to qualify for these nonimmigrant 
statuses, rather the proposal is only to change the length of time that 
an individual may lawfully remain in the United States in F or J status 
without filing an extension of stay. Admitting these categories of 
nonimmigrants for a fixed period of admission simply confirms that the 
admission is temporary and clearly communicates when that temporary 
admission period ends. Further, as is the case for the fixed period of 
admission policy more generally, a fixed

[[Page 60541]]

date of admission simply places these nonimmigrants in the same 
position as most other nonimmigrants who are temporarily in the United 
States. They would still be able to continue to pursue their full 
course of study or exchange visitor program; however, if they need 
additional time in F or J status, the burden would now be upon them to 
request authorization directly from DHS and establish eligibility to 
extend their period of stay in such status, whereas previously they 
obtained an extension of lawful status in conjunction with a program 
extension through a DSO or RO.
    At the same time, this proposed process would provide immigration 
officials an opportunity to directly review and determine whether F and 
J nonimmigrants who wish to remain in the United States beyond their 
fixed period of admission are complying with U.S. immigration law and 
are indeed eligible to retain their nonimmigrant status. If there are F 
or J nonimmigrants relying on a D/S admission in an attempt to 
permanently remain in the United States, or otherwise circumvent their 
authorized status, this proposed process would allow DHS to detect and 
deny an extension of stay request.
    DHS considered several alternatives before determining the above 
proposal was the best option. First, DHS considered whether to impose a 
consistent length for the fixed admission for all F and J nonimmigrants 
transitioning from a D/S admission, such as 1 or 3 years from the final 
rule's effective date. While this proposal would provide a standard end 
date, DHS was concerned about the expense and workload implications of 
this option on all stakeholders and DHS. As noted, DHS expects most F 
and J nonimmigrants to complete their program of study or exchange 
visitor program within a 4-year period. A date that does not align with 
this expectation could place a significant burden on the affected F and 
J nonimmigrants and on their academic institutions or exchange visitor 
programs' sponsors and employers, as applicable. USCIS would be 
especially affected if a significant percentage of these nonimmigrants 
chose to remain in the United States and file for an EOS in order to 
complete the balance of their program, study, or work activity. While 
USCIS could try to anticipate the volume, the sheer number of 
simultaneous nonimmigrants filing for EOS could significantly lengthen 
processing times. Because the proposed option is less burdensome on F 
and J nonimmigrants and on DHS, DHS does not believe that ending D/S 
for all F and J nonimmigrants at timeframes that do not align with the 
expected length of stay presents the best way to transition from D/S to 
admission for a fixed time period. The proposed transition period is 
consistent with the generally applicable policy and allows for the 
normal progress for most programs that nonimmigrants should be making. 
Further, it ensures that these nonimmigrants are complying with the 
terms and conditions of their status by requiring them to apply to 
extend their status by the end date on the I-20 or DS-2019, not to 
exceed four years.
    A second option that DHS considered was to allow F and J 
nonimmigrants to keep their D/S period of admission until they depart 
the United States. The Department rejected this alternative, however, 
because one of the main reasons for proposing this rule is to address 
current abuse tied to the D/S period of authorized admission. Adopting 
this alternative would allow aliens currently violating their 
nonimmigrant status to largely avoid the consequences of non-compliance 
with U.S. immigration laws by simply remaining in the United States, as 
otherwise described in this rule.
    Third, DHS evaluated an option to allow F and J nonimmigrants to 
retain their D/S admission up to their program end date, with the 
transfer to a fixed admission date implemented through any of the 
following actions of the nonimmigrant: (i) Departure from the United 
States; (ii) transfer to a different institution or sponsor; (iii) 
failure to maintain a full course of study; (iv) approval for 
reinstatement; \80\ (v) having a DSO or RO extend the program end date; 
(vi) approval for a post-completion OPT or a STEM OPT extension; or 
(viii) engaging in any action that requires the issuance of a new Form 
I-20 or DS-2019. However, DHS felt that this alternative may fail to 
provide adequate notice to all affected nonimmigrants given the several 
scenarios under which the transfer to a fixed period of admission could 
occur, and could lead to some fraud by DSOs intentionally providing an 
unnecessarily long program end date on the Form I-20 prior to the final 
rule's effective date. Although this option is relatively similar to 
the proposed transition process, to make the transition easier for Fs, 
Js, ROs, and DSOs, triggering events were limited to those that result 
in a change to the program end date, as well as re-entry to the United 
States. In addition, while this option would allow DHS to effectuate 
the transition of the F and J population without requiring the expense 
and workload associated with large numbers of simultaneous filings, it 
would not capture those who have program end dates beyond 4 years from 
the effective date of the proposed rule.
---------------------------------------------------------------------------

    \80\ See 8 CFR 214.2(f)(16), allowing an F-1 student, under 
certain circumstances, to apply for reinstatement with USCIS after 
receiving recommendation from the DSO, following a failure to 
maintain status.
---------------------------------------------------------------------------

    Fourth, DHS weighed whether requiring various categories of F or J 
nonimmigrants to apply for an EOS within 60 days after the final rule's 
effective date would better address national security and fraud issues 
rather than transitioning all nonimmigrants from D/S to an admission 
for a fixed time period by using the program end date up to a maximum 
period of four years. To identify the categories that would be required 
to file an EOS soon after the final rule's effective date, DHS 
considered adopting the limiting factors listed at proposed 8 CFR 
214.2(f)(20) and (j)(6) (including certain countries and U.S. national 
interests, unaccredited institutions, E-Verify participation, and 
language training programs). While such an approach could prioritize 
certain aliens for prompt, direct vetting and oversight, applying it to 
hundreds of thousands of nonimmigrants who had been admitted into the 
United States under D/S could have a significant impact. DHS believes 
that this approach could result in lengthy processing timeframes as the 
affected population would be required to file an EOS at the same time. 
Given USCIS' processing times, DHS does not believe there would be 
significant efficiency to excepting certain F or J categories from 
applying for EOS later than other F or J categories. In addition, this 
short timeframe to file EOS may be burdensome on F, Js, and the 
institutions and sponsors as they adapt to a new process, as compared 
with the proposed transition period within the 4-year period.
    In sum, DHS's proposal is to transition all F and J nonimmigrants 
to a fixed admission date by using the program end date noted on their 
Form I-20 or DS-2019 (with the exception of F students engaging in 
post-completion or a STEM OPT extension who would use their EAD's 
expiration date), not to exceed 4 years, plus an additional 60 days for 
Fs and 30 days for Js as provided in their previous admission. DHS 
believes this is a natural way to transition the majority of these 
nonimmigrants to a fixed admission date without creating any loopholes, 
such as those that could be created by allowing Fs and Js to retain 
their duration of status, potentially permitting those who are abusing 
their status to continue to do so without the oversight and vetting 
conducted through

[[Page 60542]]

EOS. It would also provide all affected nonimmigrants adequate notice 
of the events that would trigger the transition to a fixed admission 
date to a fixed admission date and their responsibilities resulting 
from such change.
ii. I Nonimmigrants
    Turning to I nonimmigrants, DHS proposes an automatic extension of 
the length of time it takes the alien to complete his or her activity, 
for a period of up to 240 days. See proposed 8 CFR 214.1(m)(3). DHS 
based this proposed timeframe on the period of stay authorized in 8 CFR 
274a.12(b)(20), which generally provides an automatic extension of 
employment authorization of 240 days to continue employment with the 
same employer, including for I nonimmigrants who have timely filed a 
Form I-539, Application to Extend/Change Nonimmigrant Status, see 8 CFR 
214.2(i), which currently is required when an I nonimmigrant changes 
information mediums.\81\ DHS believes that adopting an already 
established timeframe, to which I nonimmigrants are already accustomed, 
is reasonable. I nonimmigrants who seek to remain in the United States 
longer than the automatic extension period provided would be required 
to file an extension of stay request with USCIS.\82\ In addition to I 
nonimmigrants being familiar with the timeframe under 8 CFR 
274a.12(b)(20), DHS anticipates that this provision would reduce any 
gaps in employment due to USCIS' processing timeframes between the I 
nonimmigrant's application for extension and USCIS approval of the 
application. It would also facilitate an I nonimmigrant's ability to 
complete his or her assignment while temporarily in the United States 
on behalf of a foreign media organization, in that it would give ample 
time to any I nonimmigrant to either complete that assignment or ask 
for an extension, as needed.
---------------------------------------------------------------------------

    \81\ See Instructions for Application to Extend/Change 
Nonimmigrant Status, available at https://www.uscis.gov/i-539 (last 
visited April 13, 2020).
    \82\ Typically, fewer than 50,000 aliens enter the U.S. in I 
classification annually. See 2017 Yearbook of Immigration 
Statistics, Published by the DHS Office of Immigration Statistics, 
July 2019, page 63.
---------------------------------------------------------------------------

    Finally, the transition procedures would not apply to F, J, or I 
aliens who are outside the United States when the final rule takes 
effect, or to any aliens present in the United States in violation of 
their status. See proposed 8 CFR 214.1(m)(1)-(m)(3).

E. Requirements for Admission, Extension, and Maintenance of Status of 
F Nonimmigrants

    DHS is proposing various changes under the regulations that provide 
the framework for admission, extension, and maintenance of status for F 
nonimmigrants. These changes would eliminate D/S, require students to 
file an EOS if requesting to remain in the United States beyond the 
period of their admission, and clarify terms to ensure that the 
activities an F nonimmigrant has engaged in are consistent with those 
of a bona fide student.
i. Admission for a Fixed Time Period
    As a preliminary matter, DHS is proposing to strike the current 
regulation that allows F nonimmigrants to be admitted for D/S. DHS 
would replace it with a provision allowing F nonimmigrants to be 
granted status for the length of their program, not to exceed 4 years 
and subject to eligibility limitations, as well as national security 
and fraud concerns.
    Second, DHS proposes to retain in the regulations the statutory 
limitation that restricts public high school students to an aggregate 
of 12 months of study at any public high school(s). See 8 CFR 
214.2(f)(5)(i). However, this proposed rule moves this provision to a 
new section and further clarifies that the 12-month aggregate period 
includes any school breaks and annual vacations. See proposed 8 CFR 
214.2(f)(5)(i)(D). Current requirements, including paying the full cost 
of education, would also remain in place.
    Third, F-1 students who are applying to attend an approved private 
elementary or middle school or private academic high school would 
continue to be covered by the provisions of paragraph (f)(6)(i)(E). 
These provisions require the DSO to certify a minimum number of class 
hours per week prescribed by the school for normal progress toward 
graduation. See 8 CFR 214.2(f)(6)(i)(E). However, like all other F-1 
students, they would be subject to the 4-year or 2-year maximum period 
of admission and they would need to apply for an extension of stay with 
DHS if staying beyond this period. See proposed 8 CFR 214.2(f)(7)(vi).
    Fourth, DHS is proposing to exempt border commuter students from 
the general length of admission provisions. See proposed 8 CFR 
214.2(f)(5)(i)(C). The regulations at 8 CFR 214.2(f)(18) would continue 
to govern these border commuter students, including that DHS to admit 
them for a fixed time period.
    Fifth, F-1 students in a language training program would be 
restricted to a lifetime aggregate of 24 months of language study, 
which would include breaks and an annual vacation. See proposed 8 CFR 
214.2(f)(5)(i)(B). DHS is proposing this limitation as a way to prevent 
abuse of the F-1 program. Public Law 111-306, enacted on December 14, 
2010, and effective since 2011, requires language training schools 
enrolling F-1 students to be accredited by an accrediting agency 
recognized by the Secretary of Education. DHS consistently sees 
students enrolled in language training schools for very lengthy periods 
of time, including instances of enrollment for over a decade, either by 
extending a program at one school or transferring between language 
schools.\83\ DHS has also found students enrolling in lengthy periods 
of language training despite previously enrolling in or completing 
undergraduate and graduate programs requiring English language 
proficiency.\84\ Unlike degree programs that typically have prescribed 
course completion requirements, there are no nationally-recognized, 
standard completion requirements for language training programs and 
students are able to enroll in language training programs for lengthy 
periods of time. The lengthy enrollment in a language program, 
including enrollment in language courses for long periods subsequent to 
completion of a program of study that requires proficiency in English, 
raises concerns about whether the F-1s meet the statutory definition of 
a bona fide student with the intent of entering the U.S. for temporary 
study.\85\ Therefore, DHS proposes a 24-month aggregate limit for F-1 
students to participate in a language training program, as it would 
provide a reasonable period of time for students to attain proficiency 
while mitigating the Department's concerns about the integrity of the 
program. This timeframe generally comports with the length of language 
training classes offered by schools that are accredited by ED-
recognized agencies.\86\ DHS seeks

[[Page 60543]]

comments on whether 24 months is sufficient for a language training 
program.
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    \83\ For example, at one accredited English language training 
school, five students have been enrolled in language training since 
2010; eight since 2011; three since 2012; two since 2013; two since 
2014; and two since 2015.
    \84\ For example, one student has been enrolled in English 
language training programs at four different schools since 2015 
despite being an F-1 student since at least 2002. She was enrolled 
in an English language training program from 2002-2004 and 
subsequently enrolled in an associate's program that required 
English language proficiency from 2004-2008. Her Form I-20 noted 
that she had the required English language proficiency for that 
program.
    \85\ See INA (101)(a)(15)(F).
    \86\ Courses listed by language training schools accredited by 
the Accrediting Council For Continuing Education & Training reflect 
that most Intensive English Programs can be completed within 24 
months, website available at https://accet.org/ (last visited Feb. 
7, 2020). For example, ELS Language Center's longest English as a 
Second Language (ESL) program is 1440 hours. Attending 18 clock 
hours per week, the minimum for a full course of study, for that 
period of time would result in 18.4 months.
---------------------------------------------------------------------------

    Sixth, DHS proposes a maximum admission period of up to 2 years for 
certain students. See proposed 8 CFR 214.2(f)(5)(i)(A) and (f)(20). 
This period is based on factors that DHS identified as involving 
national security and public safety concerns, with the goal of 
encouraging compliance with immigration laws. They are:
     Aliens who were born in or are citizens of countries on 
the State Sponsor of Terrorism List. The State Sponsor of Terrorism 
List are countries, as determined by the Secretary of State, to have 
repeatedly provided support for acts of international terrorism 
pursuant to three laws: Section 6(j) of the Export Administration Act, 
section 40 of the Arms Export Control Act, and section 620A of the 
Foreign Assistance Act. Designation as a ``State Sponsor of Terrorism'' 
under these authorities also implicates other sanctions laws that 
penalize persons and countries engaging in certain trade with state 
sponsors. There are currently four countries designated as a state 
sponsor of terrorism under these authorities: The Democratic People's 
Republic of Korea (North Korea), Iran, Sudan, and Syria. Under this 
proposal, DHS anticipates admitting those who were born in or are 
citizens of those countries for a maximum period of up to 2 years. The 
Department believes it is appropriate to apply additional scrutiny on 
those born in these countries and citizens of these countries who are 
temporarily studying in the United States to ensure that these aliens 
do not pose risks to the national security of the United States. For 
easier reference and to ensure affected stakeholders have advanced 
notice of the countries on the State Sponsors of Terrorism List prior 
to choosing a country and institution to study in, DHS proposes to 
publish a Federal Register notice (FRN) with the DOS list. If DOS makes 
changes to the list, DHS proposes to publish an FRN with the updated 
list. Any future FRN will also announce the date that the new maximum 
2-year period of admission would apply.
     Aliens who are citizens of countries with a student and 
exchange visitor total overstay rate of greater than 10 percent 
according to the most recent DHS Entry/Exit Overstay report.\87\ The 
DHS Entry/Exit Overstay report compiles overstay rates for different 
classifications. It provides overstay rates per country for F, M, and J 
nonimmigrants together, rather than a separate overstay rate by 
classification, per country. Given the overlap between the F and J 
classifications, utilizing the data for both exchange visitors and 
students to establish overstay rates is useful in that it may deter 
aliens who may attempt to seek admission in one status rather than the 
other in order to obtain a lengthier period of admission. A key goal of 
shifting aliens in F status from D/S to an admission for a fixed time 
period is to provide pre-defined time periods for immigration officers 
to evaluate whether a nonimmigrant has maintained his or her status. If 
an immigration officer finds that an alien violated his or her status 
prior to or during the course of an EOS adjudication and denies the EOS 
request, the alien generally would begin accruing unlawful presence the 
day after issuance of the denial.\88\ The Department finds it 
appropriate to apply additional oversight to nonimmigrants from 
countries with consistently high student and exchange visitor overstay 
rates, by requiring these aliens to more frequently request extensions 
of stay. Because there is an increased risk of overstay by 
nonimmigrants from these countries as reflected by the DHS Entry/Exit 
Overstay reports, DHS would be able to identify such violations sooner. 
Further, DHS believes this more frequent oversight could deter aliens 
from engaging in activities that would violate their status, as the 
consequences of doing so would arise more quickly.
---------------------------------------------------------------------------

    \87\ The overstay report for 2019 can be found at https://www.dhs.gov/sites/default/files/publications/20_0513_fy19-entry-and-exit-overstay-report.pdf. See Table 4, Column 6.
    \88\ See USCIS Policy Memo, Consolidation of Guidance Concerning 
Unlawful Presence for Purposes of Sections 212(a)(9)(b)(i) and 
212(a)(9)(c)(i)(I) of the Act, May 6, 2009, available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF (last accessed 
June 20, 2020). This policy currently applies to F, J, and I 
nonimmigrants in relation to duration of status but will change 
accordingly when duration of status no longer applies to them).
---------------------------------------------------------------------------

    A primary aim of this proposed rule is to institute policies that 
would encourage aliens to maintain lawful status and reduce instances 
in which F, J, and I nonimmigrants unlawfully remain in the United 
States after their program or practical training ends. Under this 
proposed rule, aliens who remain in the United States beyond a fixed 
time period generally would begin accruing unlawful presence. Depending 
on the extent of unlawful presence accrual, an alien may become 
inadmissible upon departing the United States and will be ineligible 
for benefits for which admissibility is required, such as adjustment of 
status to that of a lawful permanent resident. See INA 212(a)(9)(B), 
(C), 8 U.S.C. 1189(a)(9)(B), (C); INA 245(a), 8 U.S.C. 1255(a). Placing 
restrictions on citizens of countries with high overstay rates 
incentivizes timely departure. The aggregate effect of the policy may 
help reduce a country's overstay rate on the DHS Entry/Exit report 
below 10 percent, in which case nationals of the country would become 
eligible for a longer period of admission under the F nonimmigrant 
classification.
    Finally, the ``greater than 10%'' student and exchange visitor 
overstay rate threshold aligns with the percentage described by the 
Administration as a `high' overstay rate for the purpose of enabling 
DHS and DOS to ``immediately begin taking all appropriate actions that 
are within the scope of their respective authorities to reduce overstay 
rates for all classes of nonimmigrant visas.'' \89\ The ``greater than 
10%'' overstay rate threshold is more than double the general overstay 
rate for nonimmigrant student and exchange visitors as noted in the 
2018 DHS Entry/Exit Overstay report,\90\ meaning that countries with 
such overstay rates are well outside the norm. DHS believes that it is 
appropriate to require more frequent check-ins on citizens of those 
countries to ensure that they are in compliance with the terms and 
conditions of their admission.
---------------------------------------------------------------------------

    \89\ See Presidential Memorandum on Combating High Nonimmigrant 
Overstay Rates (April 22, 2019) available at https://www.whitehouse.gov/presidential-actions/presidential-memorandum-combating-high-nonimmigrant-overstay-rates/(last visited April 13, 
2020). The Presidential Memorandum identified countries with a total 
overstay rate greater than 10 percent in the combined B-1 and B-2 
nonimmigrant visa category as appropriate for additional engagement 
by the DOS, which ``should identify conditions contributing to high 
overstay rates among nationals of those countries . . .''
    \90\ According to the FY 2018 DHS Entry/Exit Overstay Report, 
for nonimmigrants who entered on a student or exchange visitor visa 
(F, M, or J visa) there were 1,840,482 students and exchange 
visitors scheduled to complete their program in the United States, 
of which 3.73 percent (68,593) stayed beyond the authorized window 
for departure at the end of their program.
---------------------------------------------------------------------------

    To ensure affected stakeholders have notice of which countries have 
an overstay rate exceeding that threshold, DHS proposes to issue FRNs 
listing countries with overstay rates triggering the 2-year admission 
period. The first such FRN would also list countries that have been 
designated as State Sponsors of Terrorism, and provide a link where

[[Page 60544]]

stakeholders could access information about schools that have been 
accredited by an ED-recognized accrediting agency.\91\
---------------------------------------------------------------------------

    \91\ The Department of Education (ED) provides this information 
on its Database of Accredited Postsecondary Institutions and 
Programs web page at https://ope.ed.gov/dapip/#/home (last visited 
Feb. 1, 2020).
---------------------------------------------------------------------------

    DHS proposes to publish this FRN contemporaneously with the final 
rule. Any changes to the list would be made by a new FRN.
     U.S. national interest. Other factors that would be 
incorporated into a FRN would be a limitation of a student's period of 
stay to a maximum of a 2-year period based on factors determined to be 
in the U.S. national interest, which may include but not be limited to 
circumstances where they may be national security concerns or risks of 
fraud and abuse. For example, the Secretary of Homeland Security could 
determine that it is appropriate to limit the length of admission of 
students who are enrolled in specific courses of study, such as nuclear 
science. DHS believes collecting information more often and applying 
additional vetting helps mitigate national security risks. If the DHS 
Secretary determines that U.S. national interests warrant limiting 
admission to a 2-year maximum period in certain circumstances, then it 
would publish an FRN to give the public advance notice of such 
circumstance.
     Aliens who are not attending institutions accredited by an 
accrediting agency recognized by the Secretary of Education. The goal 
of accreditation is to ensure that by post-secondary institution 
provides an education that meets acceptable levels of quality. 
Specifically, the accreditation process involves the periodic review of 
institutions and programs to determine whether they meet established 
standards. and are achieving their stated educational objectives. 
Schools meeting the accreditation requirement are subjected to 
significant oversight by the accrediting body, including recurring 
assessment of the institutions' programs to ascertain their 
effectiveness in helping students attain both academic knowledge and 
professional skills. The intervals at which schools must submit to 
accreditation review vary across accrediting agencies, but review 
typically occurs at least every 10 years, with the accrediting agencies 
themselves subject to review by ED, to determine whether to grant or 
renew recognition, at least every 5 years.\92\
---------------------------------------------------------------------------

    \92\ Report from U.S. Department of Education Office of the 
Inspector General, U.S. Department of Education's Recognition and 
Oversight of Accrediting Agencies, ED-OIG/A09R 0003, June 27, 2018.
---------------------------------------------------------------------------

    Accreditation may be institutional, meaning it applies to the 
school as a whole and covers any educational programs the school 
offers, or specialized/programmatic, meaning it covers specific 
programs only.\93\ ED classifies each recognized accrediting agency as 
institutional or programmatic to help schools identify which agencies 
might be appropriate for their needs.\94\ DHS believes the independent, 
third-party checks offered through accreditation minimize the risk of 
fraud and abuse by schools and DSOs.
---------------------------------------------------------------------------

    \93\ Id.
    \94\ List of ED's Database of Accredited Postsecondary 
Institutions and Programs, https://ope.ed.gov/dapip/#/agency-list 
(last visited Feb. 4, 2020).
---------------------------------------------------------------------------

    The history of problems encountered at unaccredited schools 
approved for the attendance of F-1 students demonstrates the value of 
promoting attendance at accredited schools. For example, in 2014, the 
founder of Tri-Valley University, an unaccredited institution in 
Pleasanton, California, Susan Xiao-Ping Su, was sentenced to more than 
16 years in prison for her role in a massive, highly profitable visa 
fraud scheme that lasted 2 years.\95\ To execute the fraud, Su 
submitted fabricated paperwork to DHS to obtain certification to enroll 
nonimmigrant students. Once certified, Su issued F-1 visa-related 
documents to students on false premises, with no criteria for admission 
or graduation, and no requirement that students maintain the course 
loads required for F-1 status.\96\ While it was operating, the school 
helped approximately 1,500 foreign nationals enter the country for work 
or other purposes by helping them illegally obtain F-1 visas.\97\
---------------------------------------------------------------------------

    \95\ See U.S. Department of Justice (DOJ), U.S. Attorney's 
Office Northern District of California News Release, ``CEO and 
President of East Bay University Sentenced to 198 Months for Fraud 
Scheme,'' (Nov. 3, 2014) available at https://www.justice.gov/usao-ndca/pr/ceo-and-president-east-bay-university-sentenced-198-months-fraud-scheme (last visited Feb. 7, 2020).
    \96\ Id.
    \97\ See The Chronicle of Higher Education, ``Little-Known 
Colleges Exploit Visa Loopholes to Make Millions Off Foreign 
Students'' (March 20, 2011) available at https://www.chronicle.com/article/Little-Known-Colleges-Make/126822 (last visited Feb. 7, 
2020).
---------------------------------------------------------------------------

    Also in 2014, the former head of College Prep Academy in Duluth, 
Georgia, another unaccredited institution, was sentenced to nearly 2 
years in prison for overseeing an immigration fraud scheme that brought 
women into the country through illegally obtained F-1 visas.\98\ Once 
in the United States, the women were put to work in bars operated by 
associates of the school's owner, with no expectation that they would 
ever attend classes at the school.\99\
---------------------------------------------------------------------------

    \98\ See DOJ News Release, ``English Language School Owner 
Sentenced for Immigration Fraud,'' (May 7, 2014) available at 
https://www.justice.gov/usao-ndga/pr/english-language-school-owner-sentenced-immigration-fraud (last visited Feb. 7, 2020).
    \99\ Id.
---------------------------------------------------------------------------

    More recently, in 2018, the owner of four unaccredited schools in 
and around Los Angeles was sentenced to over 1 year in prison for his 
role in conducting a ``sophisticated, extensive, and lucrative'' 
immigration document fraud scheme that lasted for at least 5 
years.\100\ The owner and his co-conspirators falsified student records 
and transcripts for thousands of foreign nationals as part of a ``pay-
to-stay'' scheme. They enabled the nonimmigrants to remain in the 
United States illegally, despite rarely or ever attending the classes 
for which they were allegedly enrolled.\101\
---------------------------------------------------------------------------

    \100\ See DOJ News Release, Owner of Schools that Illegally 
Allowed Foreign Nationals to Remain in U.S. as `Students' Sentenced 
to 15 Months in Federal Prison, https://www.justice.gov/usao-cdca/pr/owner-schools-illegally-allowed-foreign-nationals-remain-us-students-sentenced-15 (last visited April 13, 2020).
    \101\ Id.
---------------------------------------------------------------------------

    DHS believes that the accreditation limitation will curtail the 
potential for fraudulent use of F-1 student status. It will provide a 
direct check-in point with the Department if a nonimmigrant enrolled in 
an unaccredited school wishes to remain in the U.S. beyond 2 years. 
While DHS is not imposing an ED-accreditation requirement on post-
secondary institutions in order to be certified by SEVP to accept 
foreign students, the Department is proposing to rely on the 
accreditation process as a means to promote the integrity of the 
immigration system. DHS hopes that post-secondary institutions 
enrolling foreign students thereby would be incentivized to pursue 
accreditation by an ED-recognized agency, including meeting all 
requirements, rather than potentially lose future international 
students and associated revenue to those schools that do.
    Because ED only has the authority to recognize post-secondary 
accreditors, aliens attending elementary, middle or high school would 
not be subject to this limitation and may be eligible for the maximum 
4-year period of admission. A link to information about ED-accredited 
agencies would be included in a FRN that would be published 
concurrently with the final rule and updated as needed (including if ED 
changes the web page where it publishes accredited agencies).
     E-Verify Participation. USCIS administers E-Verify, a web-
based

[[Page 60545]]

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

    \102\ DHS compiled this information while conducting an internal 
case analysis; however, the Department is withholding this 
information to prevent the disclosure of PII.
---------------------------------------------------------------------------

    While there are legitimate cases of students wishing to gain 
knowledge at a lower or the same educational level, the traditional 
path of study progresses from a lower educational program to a higher 
one. The regulations contemplate a model consistent with the vast 
majority of bona fide students following

[[Page 60546]]

this upward trajectory. The term ``full course of study'' as defined in 
the regulations requires that the program ``lead to the attainment of a 
specific educational or professional objective.'' \103\ Frequent or 
repeated changes within an educational level or to a lower level are 
not consistent with attainment of such an objective. This understanding 
was reflected in the preamble to a 1986 rulemaking proposing changes to 
the F regulations, which stated: ``The proposed regulation . . . places 
limitations on the length of time a student may remain in any one level 
of study. Thus, the Service has eliminated applications for extension 
of stay for students who are progressing from one educational level to 
another but has placed a control over students who, for an inordinate 
length of time, remain in one level of study.'' \104\
---------------------------------------------------------------------------

    \103\ 8 CFR 214.2(f)(6)(i).
    \104\ Nonimmigrant Classes, Change of Nonimmigrant 
Classification, 51 FR 27867 (proposed Aug. 4, 1986).
---------------------------------------------------------------------------

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

[[Page 60547]]

their studies and any practical training to prepare for departure from 
the United States. See 8 CFR 214.2(f)(5)(iv). However, this is twice as 
long as other student and exchange visitor categories--J exchange 
visitors and M vocational students are only allowed 30 days. See 8 CFR 
214.2(j)(1)(ii) and (m)(10)(i).
    This 60-day period is also six times longer than certain 
nonimmigrants who are authorized to remain in the United States for 
years, but are only provided with a 10-day period to depart the United 
States. For example, DHS provides a 10-day period following the end of 
the alien's admission period as stated on his or her Form I-94 for 
individuals in the E-1, E-2, E-3, H-1B, L-1, and TN classifications in 
a 2016 rulemaking.\105\ In the rulemaking discussing this 10-day period 
for departure, DHS noted that a grace period of up to 10 days after the 
end of an authorized validity period provides a reasonable amount of 
time for such nonimmigrants to depart the United States or take other 
actions to extend, change, or otherwise maintain lawful status.\106\ It 
is thus unclear to DHS why F students would need a significantly longer 
period of time--60 days--to prepare for departure when other 
nonimmigrants have less time to prepare for departure.\107\
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    \105\ See 8 CFR 214.1(l)(1) (providing for 10-day grace periods 
for certain nonimmigrants).
    \106\ See Retention of EB-1, EB-2, and EB-3 Immigrant Workers 
and Program Improvements Affecting High-Skilled Nonimmigrant 
Workers, 81 FR 82,398, 82,401 (Nov. 18, 2016).
    \107\ Rulemakings in the mid-1980s mention this 60-day period 
for departure but did not provide any explanation as to why this 
period of time to depart was given to students. See e.g., 
Nonimmigrant Classes; F-1 Students, 52 FR 13,223 (Apr. 22, 1987) 
(referencing the proposed rule, and stating that in the ``proposed 
regulations, duration of status was defined to mean the period 
during which a student is pursuing a full course of studies in any 
educational program, and any period or periods of authorized 
practical training, plus sixty days,'' but not indicating the reason 
for the 60-day period). Nonimmigrant Classes; Change of nonimmigrant 
Classification, 51 FR 27,867 (Aug. 4, 1986) (proposing that duration 
of status would consist of an additional ``sixty days within which 
to depart from the United States,'' but silent on the reason for the 
60-day period of departure).
---------------------------------------------------------------------------

    DHS believes that 30 days for the F nonimmigrant population is the 
appropriate balance between a 60-day and a 10-day period of departure. 
DHS believes that the F category, albeit distinct from M or J, shares a 
core similarity in that many aliens in these categories are seeking 
admission to the United States to study at United States educational 
institutions. Thus, DHS thinks that these categories should have a 
standard period of time to prepare for departure, or take other actions 
to extend, change, or otherwise maintain lawful status. DHS thinks that 
30 days is an adequate period for F-1 students to prepare for departure 
and is in line with similar categories (the M and J departure periods) 
but welcomes comments on whether a different period for departure would 
be more appropriate for the F nonimmigrant classification, including 
whether there are meaningful distinctions between F nonimmigrant 
students and both J exchange visitors and M vocational students that 
should be considered. DHS also welcomes comments regarding whether the 
30-day departure period should be reflected in the Form I-94. See 
proposed 8 CFR 214.2(f)(5)(v) and (f)(10)(ii)(D).
    Additionally, in the 2016 rulemaking establishing a 10-day grace 
period for certain nonimmigrant classifications, DHS chose to remove 
the phrase ``to prepare for departure from the United States or to seek 
an extension or change of status based on a subsequent offer of 
employment'' from the proposed regulatory text relating to the purpose 
of the grace period, with the justification that it was unnecessarily 
limiting and did not fully comport with how the existing 10-day grace 
period may be used by individuals in the H, O and P nonimmigrant [visa] 
classifications.\108\ DHS clarified that the 10-day grace period may be 
granted to these nonimmigrants at time of admission or upon approval of 
an extension of stay or change of status and may be used for other 
permissible non-employment activities such as seeking to change one's 
status to that of a dependent of another nonimmigrant or vacationing 
prior to departure.\109\ DHS notes that seeking an extension of stay or 
change of status is an allowable activity for F aliens during the 30 
day departure period following the completion of their program and 
believes this same clarification should be incorporated into this 
proposed rulemaking. See proposed 8 CFR 214.2(f)(5)(iv).
---------------------------------------------------------------------------

    \108\ Retention of EB-1, EB-2, and EB-3 Immigrant Workers and 
Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 
FR 82,398, 82402, 82437 (Nov. 18, 2016).
    \109\ Id at 82437.
---------------------------------------------------------------------------

    DHS also proposes to clarify that the proposed period to prepare 
for departure or otherwise maintain status is 30 days from the Form I-
94 (or successor form) end date or the expiration date noted on the 
Employment Authorization Document (Form I-766 or successor form), as 
applicable, to prepare for departure from the United States, or 
otherwise obtain lawful status. See proposed 8 CFR 214.2(f)(5)(iv).
    Finally, DHS proposes to retain the current regulatory language 
that allows a 15-day period for departure from the United States if an 
alien is authorized by the DSO to withdraw from classes, but no 
additional time for departure if the alien fails to maintain a full 
course of study without the approval of the DSO or otherwise fails to 
maintain status. See 8 CFR 214.2(f)(5)(iv). Because DSOs generally 
authorize withdrawal based on compelling academic or medical 
circumstances when a student proactively requests permission, DHS 
believes retaining the 15-day period is appropriate. However, aliens 
who fail to maintain their full course of study or otherwise 
impermissibly violate their status are required to immediately depart 
the United States, as is consistent with other nonimmigrant categories. 
DHS considered allowing a short ``grace period'' for departure after an 
EOS denial, but does not see a compelling reason to treat F 
nonimmigrants who have received a denial more favorably than other 
nonimmigrant categories. As in other nonimmigrant categories, failure 
to immediately depart under these circumstances could result in accrual 
of unlawful presence and subject an individual to removal.
iv. Automatic Extension of Status
1. Authorized Status and Employment Authorization Under 8 CFR 
214.2(f)(5)(vi)
    Each year, a number of U.S. employers seek to employ F-1 students 
and file a Form I-129, Petition for a Nonimmigrant Worker, with USCIS, 
along with a change of status request, to obtain classification of the 
F-1 student as an H-1B nonimmigrant worker. The H-1B nonimmigrant visa 
program allows U.S. employers to temporarily employ foreign workers in 
specialty occupations, defined by statute as occupations that require 
the theoretical and practical application of a body of highly 
specialized knowledge and a bachelor's or higher degree in the specific 
specialty, or its equivalent. See INA sections 101(a)(15)(H)(i)(b) and 
214(i); 8 U.S.C. 1101(a)(15)(H)(i)(b) and 1184(i). The H-1B 
classification, however, is subject to annual numerical allocations. 
See INA sections 214(g)(1)(A) and (g)(5)(C); 8 U.S.C. 1184(g)(1)(A) and 
(g)(5)(C).\110\ For

[[Page 60548]]

purposes of the H-1B numerical allocations, each fiscal year begins on 
October 1. Petitioners may not file H-1B petitions more than six months 
before the date of actual need for the employee.\111\ Thus, the 
earliest date an H-1B cap-subject petition may be filed for an 
allocation for a given fiscal year is April 1, six months prior to the 
start of the applicable fiscal year for which initial H-1B 
classification is sought. Many F-1 students complete a program of study 
or post-completion OPT in mid-spring or early summer. Per current 
regulations, after completing their program or post-completion OPT, F-1 
students have 60 days (which DHS is proposing to change to 30 days) to 
take the steps necessary to maintain legal status or depart the United 
States. See 8 CFR 214.2(f)(5)(iv). However, because the change to H-1B 
status cannot occur until October 1, an F-1 student whose program or 
post-completion OPT expires in mid-spring has two or more months 
following the 60-day period before the authorized period of H-1B status 
can commence. To address this situation, commonly known as the ``cap-
gap,'' DHS established regulations that automatically extended F-1 D/S 
and, if applicable, post-completion OPT employment authorization for 
certain F-1 nonimmigrants to October 1 for eligible F-1 students. See 8 
CFR 214.2(f)(5)(vi). The extension of F-1 D/S and OPT employment 
authorization is commonly known as the ``cap-gap extension.''
---------------------------------------------------------------------------

    \110\ Under INA 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A), 65,000 
aliens may be issued H-1B visas or otherwise provided H-1B 
nonimmigrant status in a fiscal year. This limitation does not apply 
to aliens who have earned a master's or higher degree from a U.S. 
institution of higher education, as defined in 20 U.S.C. 1001(a), 
until the number of aliens who are exempted from such numerical 
limitation during such year exceeds 20,000. INA 214(g)(5)(C), 8 
U.S.C. 1184(g)(5)(C).
    \111\ See 8 CFR 214.2(h)(2)(i)(I).
---------------------------------------------------------------------------

    DHS proposes to retain the cap-gap provisions automatically 
granting, for a certain period of time, the extension of F-1 students' 
stay and grant of employment authorization for aliens who are the 
beneficiaries of timely filed H-1B cap-subject petitions with an 
employment start date of October 1, and requesting a change of status. 
Under current regulations, the automatic cap-gap extension is valid 
only until October 1 of the fiscal year for which H-1B status is being 
requested. See 8 CFR 214.2(f)(5)(vi). With the consistently high volume 
of H-1B petitions each year, however, USCIS has been unable to complete 
adjudication of H-1B cap-subject petitions by October 1, resulting in 
situations where some individuals must stop working on October 1 
because the employment authorization provided under 8 CFR 
214.2(f)(5)(vi) terminates on that date, although generally these 
individuals may remain in the United States while the H-1B change of 
status application is pending.\112\
---------------------------------------------------------------------------

    \112\ In 2018, USCIS issued a web alert notifying the public 
that significant numbers of beneficiaries would lose their 
employment authorization and stating that individuals can generally 
remain in the United States without accruing unlawful presence while 
their application is pending, provided they do not work without 
authorization, available at https://www.uscis.gov/news/alerts/f-1-cap-gap-status-and-work-authorization-extension-only-valid-through-sept-30-2018 (last visited Jan. 12, 2020).
---------------------------------------------------------------------------

    To account for this operational issue, DHS is proposing to revise 8 
CFR 214.2(f)(5)(vi) to provide an automatic extension of F-1 status and 
post-completion OPT, as applicable, until April 1 of the fiscal year 
for which the H-1B petition is filed. The F-1 student would not need to 
file a separate EOS if their fixed date of admission passed during the 
period before April 1, as this provision would extend the applicant's 
F-1 status automatically if an H-1B petition requesting a change of 
status is timely filed on behalf of the F-1 student. See proposed 8 CFR 
214.2(f)(5)(vi)(A). However, if the F-1 student's COS is still pending 
at the end of the cap-gap period, then his or her employment 
authorization would terminate on March 31, and the applicant would no 
longer be employment authorized on this basis as of April 1. If the H-
1B petition underlying the cap-gap extension is denied, then, 
consistent with existing USCIS practice, the F-1 beneficiary of the 
petition, as well as any F-2 dependents, will receive the standard F-1 
grace period (which this rule proposes to change to 30 days) to depart 
the United States.
    DHS believes that proposing to change the automatic extension end 
date from October 1 to April 1 would avoid disruptions in employment 
authorization that some F nonimmigrants seeking cap gap extensions have 
been experiencing over the past several years. DHS fully expects USCIS 
would be able to adjudicate all H-1B cap-subject petitions requesting a 
change of status from F-1 to H-1B by that April 1 deadline. In addition 
to avoiding employment disruptions, the lengthier extension of F status 
and employment authorization for aliens with pending H-1B petitions 
until April 1, up to one year, depending on when the H-1B petition was 
filed, accounts for USCIS' competing operational considerations and 
would enable the agency to more appropriately balance workloads across 
petition types.
    DHS is also proposing to clarify that the cap-gap provision does 
not authorize employment for dependents who seek to change status from 
F-2 status to H-1B or H-4 (spouse or child of H nonimmigrant) status. 
See proposed 8 CFR 214.2(f)(5)(vi)(D). Dependents may not accept 
employment as an F-2 nonimmigrant. Thus, there is no work that would be 
disrupted by a loss of employment authorization while the F-2 
dependent's COS application remains pending with USCIS for 
adjudication. As is the case under the current regulation, an F-1 
nonimmigrant's automatic extension of status under the cap-gap 
provision also applies to his or her F-2 dependents who timely file a 
change of status application to H-4.\113\
---------------------------------------------------------------------------

    \113\ 8 CFR 214.2(f)(5)(vi)(D).
---------------------------------------------------------------------------

    DHS believes that these changes would result in more flexibility 
for both students and the Department and would help to avoid disruption 
to U.S. employers who are lawfully employing F-1 students while a 
qualifying H-1B petition is pending. However, DHS is concerned with the 
impacts of this provision on U.S. workers and students, especially if 
it would result in increased competition for certain jobs, and invites 
comments from the public on this issue.
2. F-1 Status and Employment Authorization While EOS and Employment 
Authorization Applications Are Pending
    DHS proposes to strike ``duration of status'' from 8 CFR 
214.2(f)(5)(vi) and clarify that an alien with F-1 status whose 
admission period as indicated on his or her Form I-94 has expired, but 
who has timely filed an EOS application, would be authorized to 
continue pursuing a full course of study after the end date of his or 
her admission until USCIS adjudicates the EOS application. See proposed 
8 CFR 214.2(f)(5)(vii). This change would provide ongoing authorization 
to continue studies as long as the student has timely filed his or her 
EOS and will not penalize students if USCIS is unable to adjudicate an 
EOS application before a student's new term or course of study is 
underway. In such cases, students would be able to continue pursuing 
their full course of study.
    The shift to a fixed date of admission has implications for 
employment authorization. Currently, DSOs may authorize certain types 
of employment authorization, including on campus employment and 
CPT,\114\ and students generally do not need to be concerned about a 
specific expiration date for their student status, and thus their 
employment authorization, because they

[[Page 60549]]

are admitted for duration of status. This rule would change that 
framework with different implications for various types of employment 
authorization.
---------------------------------------------------------------------------

    \114\ See 8 CFR 214.2(f)(10)-(12), 8 CFR 274a.12(b)(6)(iv).
---------------------------------------------------------------------------

    For on-campus employment where no EAD is needed, DHS proposes to 
allow aliens in F-1 status to continue to be authorized for on-campus 
employment while their EOS applications with USCIS are pending, not to 
exceed a period of 180 days.\115\ See proposed 8 CFR 214.2(f)(5)(vii). 
If the EOS application is still pending after 180 days have passed, the 
F-1 student would no longer be authorized for employment and would need 
to stop engaging in on-campus employment. DHS is proposing a 180-day 
automatic extension period in order to minimize disruptions to on-
campus employment by teaching assistants, post-graduates working on 
research projects, and other positions that are integral to an F-1 
student's educational program. A 180-day period would be consistent 
with the other automatic extension for F-1 STEM OPT students.\116\ That 
timeframe has been in existence since 2008 and DHS expects the F-1 
population of students and employers to be familiar with it. DHS 
welcomes comments on whether the 180 day period of automatic extension 
for employment is an appropriate time period.
---------------------------------------------------------------------------

    \115\ See 8 CFR 214.2(f)(9)(i) for a description of on-campus 
employment. For on-campus employment that is based on severe 
economic hardship resulting from emergent circumstances pursuant to 
8 CFR 214.2(f)(5)(v), see later discussion for additional 
restrictions.
    \116\ 8 CFR 274a.12(b)(6)(iv).
---------------------------------------------------------------------------

    Likewise, DHS is proposing an automatic extension of off-campus 
employment authorization for up to 180-days during the pendency of the 
EOS application, for F-1 aliens who have demonstrated severe economic 
hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C). These circumstances may 
include loss of financial aid or on-campus employment without fault on 
the part of the student, substantial fluctuations in the value of 
currency or exchange rate, inordinate increases in tuition and/or 
living costs, unexpected changes in the financial condition of the 
student's source of support, medical bills, or other substantial and 
unexpected expenses. Id. In such cases, DHS believes a 180-day 
automatic extension of employment authorization would help alleviate 
the severe economic hardship and avoid a disruption in their 
employment, especially given the fact that an Employment Authorization 
Document is required and frequency at which these students must submit 
an application for employment authorization.\117\ Additionally, given 
that USCIS' average EAD processing time is typically 90-120 days, a 
180-day timeframe provides sufficient flexibility in case of unexpected 
delays.\118\ A longer auto-extension period for automatic extension of 
employment authorization is unnecessary.
---------------------------------------------------------------------------

    \117\ See 8 CFR 274a.12(c)(3). 8 CFR 214.2(f)(9)(ii)(F)(2) 
provides that employment authorization based upon severe economic 
hardship may be granted in one-year intervals up to the expected 
date of completion of the student's current course of study.
    \118\ See Check Case Processing Time, available at https://egov.uscis.gov/processing-times/ (last visited June 19, 2020). The 
Potomac Service Center, which adjudicates all applications for 
Employment Authorization for Optional Practical Training, lists 
processing times from 3.5 to 5.5 months.
---------------------------------------------------------------------------

    For F-1 aliens granted off-campus employment authorization on the 
basis of severe economic hardship resulting from emergent circumstances 
pursuant to 8 CFR 214.2(f)(5)(v), DHS is proposing an automatic 
extension of such employment authorization with a different validity 
period than the general 8 CFR 214.2(f)(9)(ii)(C) severe economic 
hardship employment authorization extension described above while their 
EOS applications are pending. As first promulgated in 1998, the 
regulations provide necessary flexibility to address unforeseeable 
emergencies by allowing DHS, by notice in the Federal Register, to 
suspend the applicability of some or all of the requirements for on- 
and off-campus employment authorization for specified F-1 students 
where an emergency situation has arisen calling for this action. These 
F-1 students must continue to attend classes, but are allowed to take a 
reduced course load. By regulation, aliens must take at least 6 
semester or quarter hours of instruction at the undergraduate level or 
3 semester or quarter hours of instruction at the graduate level. See 8 
CFR 214.2(f)(5)(v). Failure to take the required credits could be 
considered a failure to maintain F-1 status. The special student relief 
(SSR) regulations are announced by notice in the Federal Register and 
that employment may only be undertaken during the validity period of 
the SSR notice. Currently, any extension of SSR-based employment would 
have to be granted before the expiration of the prior grant of SSR 
employment-based employment authorization, if it is not granted before 
the expiration of the prior authorization, the student must stop 
working under that SSR-based employment authorization benefit, until 
the renewal is reauthorized. Because students are currently admitted 
for D/S, these aliens generally do not have to be concerned about their 
F-1 period of authorized stay. However, with the shift to a fixed 
admission period, these aliens would have to be cognizant of that date 
in order for the EOS to be approved. DHS believes it is appropriate to 
provide an automatic extension of SSR-based employment so aliens' 
ability to benefit from this long-standing regulatory relief is not 
interrupted by USCIS processing times. Consistent with existing 
practice for certain nonimmigrants who require an EAD,\119\ DHS 
proposes to automatically extend SSR authorization if an F-1 alien has 
a timely-filed EOS pending for up to the end date stated in the Federal 
Register notice announcing the suspension of certain requirements, or 
180 days, whichever is earlier.
---------------------------------------------------------------------------

    \119\ See 8 CFR 274a.13(d).
---------------------------------------------------------------------------

    As evidence of these automatic extensions of employment 
authorization, DHS is proposing that the F-1 aliens' Form I-94 (or 
successor form) or Employment Authorization Document (EAD, Form I-766, 
or successor form), for F-1s requiring an EAD, when combined with a 
notice issued by USCIS indicating receipt of a timely filed extension 
of stay application (such as the Form I-797), would be considered 
unexpired until USCIS issues a decision on the EOS application, not to 
exceed 180 days. See proposed 8 CFR 214.2(f)(5)(vii). SSR-based 
employment authorization that has been automatically extended can be 
evidenced by the F-1 alien's EAD and receipt notice issued by USCIS 
(the Form I-797), not to exceed the lesser of 180 days or the end date 
stated in the Federal Register notice announcing the suspension of 
certain requirements.
    DHS believes that continued employment authorization for aliens 
wishing to work as an intern for an international organization, engage 
in CPT, or in pre- or post-completion OPT present materially different 
circumstances from those pertaining to aliens who are experiencing 
emergent circumstances, severe economic hardship, or engaging in on 
campus employment, and that the same automatic extension policies 
therefore should not apply to them.
    First, related to the employment authorization requests to engage 
in an internship with an international organization, such requests 
arise when a student has an opportunity for an internship with certain 
organizations and these make up a smaller proportion of employment 
authorization applications. These requests are not tied to economic 
necessity or emergent circumstances. Therefore, DHS is not

[[Page 60550]]

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

[[Page 60551]]

dropped below a full course of study, that drop must have been properly 
authorized. Students seeking extensions of stay must primarily be 
seeking to temporarily stay in the United States solely to pursue a 
full course of study, INA section 101(a)(15)(F)(i), 8 U.S.C. 
1101(a)(15)(F)(i), not for other reasons separate from, or in addition 
to, pursuing a full course of study.
---------------------------------------------------------------------------

    \120\ Failure to file before the expiration of the previously 
accorded status or failure to maintain such status may be excused at 
the discretion of USCIS if the alien demonstrates that at the time 
of filing: The delay was due to extraordinary circumstances beyond 
the control of the applicant, and USCIS finds the delay commensurate 
with the circumstances, the alien has not otherwise violated his or 
her status, and is not subject to deportation. 8 CFR 
214.1(c)(3)(viii).
---------------------------------------------------------------------------

    By way of illustration, a student with a fixed date of admission 
may request an additional 4 months to complete his program because he 
was authorized to drop below a full course of study for one semester 
due to illness. The student would need to request an updated I-20 from 
the DSO recommending a program extension. In such an instance, an 
immigration officer could review the proffered evidence and ensure that 
the claim is supported by documentation from a medical doctor. 
Conversely, a student may request an EOS for additional time to 
complete an associate program, but fail to submit evidence they were 
properly authorized to drop below a full course of study. Under the 
proposed regulation, the immigration officer would have discretion to 
request transcripts from the student. If a student's transcripts 
reflect the student failed multiple classes one semester, an 
immigration officer could determine the student has failed to maintain 
status due to a failure to carry a full course of study as required. In 
another example, a student could submit an EOS request to continue in 
the same program because he or she was unable to take all the required 
classes for his or her major due to over-enrollment at the school. 
Again, an officer could request additional information, if needed, to 
determine that the student was maintaining a full course of study (or, 
if not, was properly authorized to reduce his or her course load), but 
due to the school's high enrollment, the student may validly require an 
additional semester to complete the degree requirements in order to 
graduate.
    Therefore, DHS is proposing to eliminate a reference to ``normal 
progress'' with respect to seeking a program extension, and incorporate 
a new standard that makes it clear that acceptable reasons for 
requesting an extension of a stay for additional time to complete a 
program are: (1) Compelling academic reasons; (2) a documented illness 
or medical condition; and (3) exceptional circumstances beyond the 
control of the alien. See proposed 8 CFR 214.2(f)(7)(iii).\121\ The 
first two factors are based on the current regulatory provisions for 
program extension, 8 CFR 214.2(f)(7)(iii), from current text (i.e., 
changes of major or research topics, and unexpected research problems). 
DHS proposes to clarify that, in addition to academic probation and 
suspension, a pattern of behavior which demonstrates a student's 
repeated inability or unwillingness to complete his or her course of 
study, such as failing classes, is not an acceptable reason for an 
extension of stay for additional time to complete a program. See 
proposed 8 CFR 214.2(f)(7)(iii)(B)(1). Current program extension 
requirements do not address students who have failed to carry a full 
course of study due to failed classes in an academic term or students 
who have a pattern of failing grades during their studies. DHS expects 
bona fide students to be committed to their studies, attending classes 
as required, carrying a full course of study, and making reasonable 
efforts toward program completion. Passing a class, or not, is 
something that is within the student's control. Therefore, a student 
who has a pattern of failing grades or has failed to carry a full 
course of study due to failing grades would not be qualified for an 
extension of stay. This prohibition would not include students, such as 
those university students who, pursuant to DHS regulations, are 
permitted to take 12 semester hours of coursework and, therefore, 
necessarily would not complete their programs within 4 years. Absent 
academic probation or suspension, or negative factors such as 
repeatedly failing classes, these students would be eligible for 
extension based upon compelling academic reasons. This prohibition 
would also not include cases where the student was properly authorized 
to drop below a full course of study due to academic difficulties or 
medical conditions or has been reinstated to student status based on a 
reduction in course load that would have been within a DSO's power to 
authorize. The student would be expected to provide evidence 
demonstrating the compelling academic reason in order for the DSO to 
recommend program extension and then the student may apply for 
extension of stay. While a letter from the student may be sufficient to 
meet his or her burden of proof, an immigration officer will evaluate 
the individual case and make the determination if additional evidence 
(such as a letter from a member of the school administration or 
faculty) is needed to adjudicate the case.
---------------------------------------------------------------------------

    \121\ DHS does not propose to update the term ``normal 
progress'' as defined in 8 CFR 214.2(f)(6)(i)(E) because the 
Department does not feel it addresses the same concerns as it does 
at 8 CFR 214.2(f)(5). The provision at 8 CFR 214.2(f)(6)(i)(E) 
relates to study at an approved private elementary or middle school 
or public or private academic high school. In that context, it is 
clear that ``normal progress'' is the completion of the academic 
year (for example, 6th grade).
---------------------------------------------------------------------------

    Next, DHS is proposing to clarify that a student can qualify for a 
program extension and corresponding extension of stay based on a 
medical reason, but it must be a documented illness or medical 
condition. To provide an objective standard, DHS proposes to codify 
standards already included in 8 CFR 214.2(f)(6)(iii)(B), which requires 
a student to provide medical documentation from a licensed medical 
doctor, doctor of osteopathy, or licensed clinical psychologist to 
substantiate the illness or medical condition if seeking a reduced 
course load. See proposed 8 CFR 214.2(f)(7)(iii)(B)(2). As this is 
already a long-standing requirement for DSOs and students in a similar 
context, DHS believes that it would be appropriate and easy to 
implement in the program extension and corresponding extension of stay 
process. Further, requiring applicants to provide documentation of 
their medical illness or medical condition that caused their program 
delay is a reasonable request, because they are asking DHS to provide 
them additional time in the United States.
    DHS is also proposing a new factor in the extension of stay 
provisions--circumstances beyond the student's control, including a 
natural disaster, a national health crisis, or the closure of an 
institution. See proposed 8 CFR 214.2(f)(7)(iii)(B)(3). As in the 
reinstatement context, DHS believes that there might be additional 
reasons beyond compelling academic or documented medical reasons that 
result in a student's inability to meet the program end date listed on 
the Form I-20.
    Therefore, DHS is proposing a third prong that would encompass 
scenarios that are not envisioned in the current provisions governing 
the extension of a program end date, such as those noted above. Some of 
these examples are currently in the reinstatement provisions, 8 CFR 
214.2(f)(16)(i)(F), and DHS believes that they merit favorable 
consideration in extension requests. However, the circumstances 
surrounding the closure of a school, if relevant, may be considered in 
determining whether the student qualifies for an extension of stay. For

[[Page 60552]]

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

    \122\ See 9 FAM 402.5-5(G).
    \123\ Id.
    \124\ Federal student loans are only available to U.S. citizens 
and permanent residents.
---------------------------------------------------------------------------

    F-1 applicants would need to timely file their EOS application--
meaning that USCIS would need to receive the application on or before 
the date the authorized admission period expires. See proposed 8 CFR 
214.2(f)(7)(v). This timeframe would include the 30-day period of 
preparation for departure allowed after the completion of studies or 
any authorized practical training. However, if the extension 
application is received during the 30-day period of preparation for 
departure provided in proposed 8 CFR 214.2(f)(5)(iv) following the 
completion of studies, the alien in F-1 status may continue studying 
but may not continue or begin engaging in practical training or other 
employment until the extension request is approved

[[Page 60553]]

and, as applicable, an employment authorization document is issued. See 
proposed 8 CFR 214.2(f)(7)(v).
    The length of the extension granted could be up to the period of 
time needed to complete the program or requested practical training, 
not to exceed 4 years, unless the alien is a border commuter, enrolled 
in language training, attending a public high school, or the two-year 
limits on admission at paragraph (f)(20) apply in which case further 
restrictions apply, as described above. By permitting admission only 
``up to'' the prescribed period, USCIS and CBP are afforded discretion 
as to the ultimate length of time to grant the applicant, and consider 
factors such as program length. Additionally, this proposal would 
replace the current provision at 8 CFR 214.2(f)(7)(iv), which 
references SEVIS and non-SEVIS schools and is outdated.
    F-2 dependents seeking to accompany the F-1 principal student would 
need to file applications for an EOS or reinstatement, as applicable. 
See proposed 8 CFR 214.2(f)(7)(vii). Dependent F-2 spouses and children 
seeking to accompany the principal F-1 student during the additional 
period of admission would need to either be included on the primary 
applicant's request for extension or properly file their own EOS 
applications on the form designated by USCIS. If the dependent files a 
separate Form I-539, he or she would need to pay a separate Form I-539 
filing fee. However, if the dependent files a Form I-539A as part of 
the primary applicant's EOS request on a Form I-539, only one fee would 
be required.
    USCIS would need to receive the extension applications before the 
expiration of the previously authorized period of admission, including 
the 30-day period following the completion of the course of study, as 
indicated on the F-2 dependent's Form I-94. To qualify for an EOS, the 
F-2 dependent would need to demonstrate the qualifying relationship 
with the principal F-1 student who is maintaining status, also be 
maintaining his or her own status, and not have engaged in any 
unauthorized employment. See proposed 8 CFR 214.2(f)(7)(vii). 
Extensions of stay for F-2 dependents would not be able to exceed the 
authorized admission period of the principal F-1 student. Id.
    Under proposed 8 CFR 214.2(f)(7)(viii), if USCIS denies the request 
for an extension, and the period of admission for the student and his 
or her dependents has expired, then the student and his or her 
dependents would need to immediately depart the United States. As with 
other nonimmigrant categories, they would not be given any period of 
time to prepare for departure from the United States after the denial, 
and there may be significant immigration consequences for failing to 
depart the country immediately. For example, such aliens generally 
would begin to accrue unlawful presence the day after the issuance of 
the denial. DHS believes this standard provides parity across 
nonimmigrant categories and invites the public to submit comments on 
this issue as well as the proposed EOS application process.
vi. School Transfers and Changes in Educational Levels
    As discussed above, a significant concern with the current D/S 
framework is that it has enabled ``pay-to-stay'' fraud in which school 
owners falsely report to DHS that a student is maintaining status in 
return for cash payments even though the student is not attending or is 
otherwise violating his or her status. In some cases, school owners 
have operated multiple schools and transferred students between these 
schools to conceal this fraud. For example, in 2018, a defendant was 
sentenced by a federal judge in the Central District of California to 
15 months in prison and ordered to forfeit more than $450,000 for 
running such a scheme involving three schools that he owned.\125\ 
Furthermore, as discussed more thoroughly in Section 4.L.ii above, the 
D/S framework has enabled some aliens to become ``professional 
students'' who spend years enrolled in programs at the same educational 
level (for example, multiple associate programs) or complete programs 
at one educational level and enroll in lower educational levels (such 
as completing a master's degree then enrolling in an associate 
program). DHS believes the proposed changes previously discussed 
regarding admission for a fixed time period and limitations on program 
changes within and between educational levels will help to address 
these concerns and serve to further strengthen the integrity of the F 
nonimmigrant visa category by better ensuring that aliens are in the 
United States primarily to study, rather than to reside permanently in 
the United States. See proposed 8 CFR 214.2(f)(8)(i)(B).
---------------------------------------------------------------------------

    \125\ DOJ Press Release, Owner of Schools that Illegally Allowed 
Foreign Nationals to Remain in U.S. as `Students' Sentenced to 15 
Months in Federal Prison, (Apr. 19, 2018), available at https://www.justice.gov/usao-cdca/pr/owner-schools-illegally-allowed-foreign-nationals-remain-us-students-sentenced-15 (last accessed 
April 11, 2020).
---------------------------------------------------------------------------

    In addition to proposing new restrictions for the number of 
programs an F-1 nonimmigrant can complete at the same or a lower 
educational level, DHS proposes to retain some of the current school 
transfer and change of educational level conditions. First, as is the 
case currently, aliens would need to begin classes at the transfer 
school or program within 5 months of transferring out of the current 
school or within 5 months of the program completion date on his or her 
current Form I-20; and second, if the alien is authorized to engage in 
post-completion OPT, he or she must be able to resume classes within 5 
months of changing programs or transferring out of the school that 
recommended OPT or the date the OPT authorization ends, whichever is 
earlier. See proposed 8 CFR 214.2(f)(8)(i)(A) and (B).
    Another indication of a violation of F-1 status is failing to 
pursue a full course of study at the school that the alien is 
authorized to attend. See proposed 8 CFR 214.2(f)(8)(ii). DHS is 
proposing to retain the current provisions, rendering aliens who do not 
pursue a full course of study ineligible to change programs or transfer 
schools, and is clarifying that failure to pursue a full course of 
study includes, but is not limited to, a student whose pattern of 
behavior demonstrates a repeated inability or unwillingness to complete 
his or her course of study, such as failing grades, resulted in the 
student not carrying a full course of study unless the student was 
previously authorized for a reduced course load. Just as delays caused 
by unacceptable patterns of behavior, academic probation or suspension 
would not be acceptable reasons for program extensions and 
corresponding EOS of a student's current program, neither would they be 
an acceptable reason for failing to carry a full course load. Such 
aliens would have failed to maintain F status, are ineligible for a 
change of program and school transfers, and would be required to file 
for a reinstatement of status, if eligible. See proposed 8 CFR 
214.2(f)(8)(ii).
    Finally, DHS proposes some technical updates. First, the Department 
would strike outdated provisions in 8 CFR 214.2(f)(8)(ii) to account 
for the fact that all schools must now be SEVP-certified and to clarify 
that the transfer provision applies only to transfers from a SEVIS 
school to a SEVIS school. See proposed 8 CFR 214.2(f)(8)(iii). Second, 
DHS proposes to update the current process by which DSOs notify USCIS 
of certain events, such as failure to maintain a full

[[Page 60554]]

course load, to reflect the fact that SEVIS is used for this purpose 
and that a paper Form I-20 is no longer used for this purpose. See 
proposed 8 CFR 214.2(f)(8)(iv). Third, if the new program to which the 
student changes or transfers will not be completed within the 
authorized admission period established in paragraphs (f)(5)(i) or 
(f)(20) of this section, then, consistent with the other provisions 
throughout this proposed rule the F-1 student would need to apply for 
EOS in the manner and on the form designated by USCIS, with the 
required fee and in accordance with form instructions, together with a 
valid, properly endorsed Form I-20 indicating the new program end date, 
and would need to provide biometrics as authorized by 8 CFR 103.16. See 
proposed 8 CFR 214.2(f)(8)(v).
vii. OPT Employment Authorization
1. Pending Employment Authorization Requests
    Currently, 8 CFR 214.2(f)(10)(ii)(D) provides for ``duration of 
status'' to include periods students spend in the United States on 
post-completion OPT. As D/S admissions would be replaced with admission 
for a fixed time period throughout this rulemaking, DHS is proposing to 
clarify that an alien in F-1 status recommended for post-completion OPT 
must apply for employment authorization and an EOS, and may not engage 
in post-completion OPT unless such employment authorization is 
granted.\126\ See proposed 8 CFR 214.2(f)(10)(ii)(D).
---------------------------------------------------------------------------

    \126\ The regulations set out the requirement that F-1 
nonimmigrants seeking OPT and STEM OPT are required to apply for 
work authorization at 8 CFR 274a.12(c) and (c)(3).
---------------------------------------------------------------------------

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

[[Page 60555]]

employment after a period of temporary absence. As DHS sets forth 
admission procedures to pursue off campus employment, post-completion 
training, and STEM OPT in proposed 8 CFR 214.1(a)(4)(i)(D), the 
reference in 8 CFR 214.2(f)(13) is redundant and could lead to 
confusion.
ix. Border Commuter Students
    DHS proposes to replace ``nonimmigrant student'' with ``alien with 
F-1 status'' consistent with proposed revisions throughout the NPRM, 
and to strike the sentence referencing how ``duration of status'' is 
inapplicable to border commuter students because DHS is proposing to 
eliminate duration of status for all F nonimmigrants. See proposed 8 
CFR 214.2(f)(18)(iii).

F. Requirements for Admission, Extension, and Maintenance of Status of 
I Nonimmigrants

i. Definition of Foreign Media Organization
    Changes in technology and in the way that the public consumes media 
information have raised novel questions as to whether certain 
individuals fit within the statutory and regulatory provisions that are 
applicable to representatives of foreign information media. To address 
these questions, DHS proposes to define a foreign media organization as 
``an organization engaged in the regular gathering, production, or 
dissemination via print, radio, television, internet distribution, or 
other media, of journalistic information and has a home office in a 
foreign country.'' See proposed 8 CFR 214.2(i)(1). This proposal 
clarifies long-standing practice that the alien be a representative of 
a media organization with a home office in a foreign country by 
codifying what is considered a foreign media organization when seeking 
qualification as an I nonimmigrant.\127\ By requiring evidence that 
shows that the foreign organization that employs or contracts the I 
nonimmigrant has a home office in a foreign country, and that the 
office in a foreign country continues to operate while the I 
nonimmigrant is in the United States, DHS would help ensure that the I 
nonimmigrant, at the time of application for admission, change of 
status, or application for extension of stay, is a bona fide 
representative of foreign media organization. See proposed 8 CFR 
214.2(i)(2). Further, to conform to the statutory intent of the I 
classification, DHS is proposing to clarify and codify the DOS and 
USCIS long-standing practice interpreting ``foreign information media'' 
under INA 101(a)(15)(I) as ``journalistic information.'' This standard 
is in place when aliens apply for an I visa abroad or seek to change to 
I nonimmigrant status in the United States and aligns with statutory 
intent, which is to facilitate foreign press and journalism, rather 
than for entertainment or promotional purposes, such as performing or 
appearing on reality television programs. There are other options for 
those aliens, such as the P nonimmigrant classifications.\128\
---------------------------------------------------------------------------

    \127\ See generally USCIS Policy Manual, Vol. 2, Part K, Chap. 
2. Available at https://www.uscis.gov/policy-manual/volume-2-part-k-chapter-2 (last visited 6/18/2020); 22 CFR 41.52; 9 FAM 402.11-
3(a)(1).
    \128\ INA section 101(a)(15)(P), 8 U.S.C. 1101(a)(15)(P).
---------------------------------------------------------------------------

    DOS is the entity that determines whether an alien qualifies for an 
I visa, while USCIS is the entity that determines whether an alien who 
is in the United States in another nonimmigrant status can change to I 
status or whether an I alien who is already in the United States and 
seeks to change his or her employer or information medium continues to 
qualify for an I status. USCIS and DOS guidance discuss the distinction 
between journalistic content and content that is primarily for 
entertainment. DOS considers journalistic information as ``content that 
is primarily informational in nature, such as the reporting on recent 
or important events, investigative reporting, or producing educational 
materials, such as documentaries. It does not include content that is 
primarily designed to provide entertainment rather than information, 
including scripted or contrived situations, such as most ``reality 
television'' shows. It also does not include most personal content, 
such as discussions of personal experiences in the United States or 
materials aimed at fan engagement, or works produced for promotional or 
marketing purposes.'' \129\ DOS' definition aligns with current USCIS 
practice where the ``officer should consider whether the intended use 
is journalistic, informational, or educational, as opposed to 
entertainment. The officer should also consider the foreign 
distribution of the film or video footage in addition to other factors, 
including the timeliness of the project relative to the subject 
event.'' \130\
---------------------------------------------------------------------------

    \129\ See DOS guidance for consular officers adjudicating I visa 
applications at 9 FAM 402.11-3.
    \130\ See USCIS Policy Manual, Vol. 2, Part K, Chap. 3. 
Available at https://www.uscis.gov/policy-manual/volume-2-part-k-chapter-3 (last visited 4/13/2020) (stating that ``[i]ncreasingly, 
because of the growing popularity of documentary-type biographies 
and similar nonfiction film productions, the distinction between 
commercial filmmaking for entertainment and genuine news gathering 
is less clear. For example, filmed biographies may be regarded as 
documentary filmmaking or as news gathering).
---------------------------------------------------------------------------

    Consistent with DOS guidance and current USCIS practice, whether 
content is journalistic information would depend on the nature of the 
content featured on the new media outlet. For example, a political 
blogger traveling to the United States to cover an election could 
qualify for I status, as election coverage would generally be 
considered journalistic information. In this example, the applicant 
would still need to demonstrate that he or she satisfies the other 
qualifications of an information media representative, including that 
he or she represents an organization involved in the regular gathering, 
production, or dissemination of journalistic information that has a 
home office in another country.\131\
---------------------------------------------------------------------------

    \131\ See 9 FAM 402.11-10, New Media--Blogging And Other 
Electronic Media Platforms, available at https://fam.state.gov/FAM/09FAM/09FAM040211.html (last visited Jan. 16, 2020).
---------------------------------------------------------------------------

    Similarly, a professional travel blogger traveling to the United 
States to obtain and produce materials on national parks in the United 
States could also qualify for I classification if all aspects of the 
definition of an information media representative are established, 
including the requirement that the media content generated will be 
journalistic information and that he or she represents an organization 
having an office in a foreign country and that is involved in the 
regular gathering, production, or dissemination of journalistic 
information. However, a blogger traveling to the United States to 
report on his or her own activities at a national park may not qualify 
for I status if the applicant does not represent an organization 
involved in the regular gathering, production, or dissemination of 
journalistic information and the media content is not primarily 
journalistic information. Individuals who are not professional 
bloggers, but maintain a personal blog and will produce content on 
their blog based on their personal experiences in the United States, 
such as providing information and reviews of their personal vacation, 
generally would not qualify for I classification, but may qualify for a 
B classification, depending on the circumstances. Likewise, a blogger 
promoting a line of products would not qualify for I status.
    These standards facilitate the travel of representatives of foreign 
information

[[Page 60556]]

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

[[Page 60557]]

May its intention to unilaterally and arbitrarily impose national 
security legislation on Hong Kong.\133\ Accordingly, the President, 
under the authority vested to him by the Constitution and applicable 
laws of the United States, including, among others, section 202 of the 
United States-Hong Kong Policy Act of 1992 (22 U.S.C. 5722), has 
determined that the Special Administrative Region of Hong Kong is no 
longer sufficiently autonomous to justify differential treatment in 
relation to the People's Republic of China under relevant U.S. laws, 
and issued an Executive Order that, among others things, directed 
agencies to begin the process of eliminating policy exemptions that 
give Hong Kong differential treatment in relation to PRC. In light of 
this Executive Order, DHS is proposing to amend its regulations to 
eliminate differential treatment of I aliens who present, or are 
traveling on, passports from the Hong Kong SAR, and grant these aliens 
a period of stay necessary to accomplish the authorized purpose of 
their I status, not to exceed 90 days. The rule also proposes to allow 
these I aliens to apply for extensions of stay, not to exceed 90 days. 
In addition, aliens in I nonimmigrant status presenting passports 
issued by the Hong Kong SAR who are properly maintaining their status 
on the [FINAL RULE EFFECTIVE DATE] with admission for D/S are 
authorized to remain in the United States in I nonimmigrant status for 
a period necessary to complete their activity, not to exceed [DATE 90 
DAYS AFTER EFFECTIVE DATE OF FINAL RULE]. I nonimmigrants who seek to 
remain in the United States longer than the automatic extension period 
provided would be required to file an extension of stay request with 
USCIS. These proposed changes are in line with the current requirements 
for I nonimmigrants who are traveling on, or have been issued a 
passport, by the PRC, which were enacted to achieve greater reciprocity 
between the United States and the PRC.
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    \133\ See the President's Executive Order on Hong Kong 
Normalization, July 14, 2020, See https://www.whitehouse.gov/presidential-actions/presidents-executive-order-hong-kong-normalization/ (last visited July 21, 2020).
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G. Requirements for Admission, Extension, and Maintenance of Status of 
J Exchange Visitors

i. Admission Period and Period of Stay
1. Principal Applicants
    The proposed revisions to the J regulations at 8 CFR closely align 
with the proposed changes for F nonimmigrants. Under proposed 8 CFR 
214.2(j)(1), J exchange visitors would be able to receive a period of 
admission not to exceed the program end date as stated on the Form DS-
2019, up to a period of 4 years, unless otherwise limited to a shorter 
period under proposed section 8 CFR 214.2(j)(6). Currently, the 
permissible initial time periods for the J programs (as opposed to the 
periods of admission) are as follows, though further extensions are 
possible with DOS approval for all categories:
     Professors and research scholars: The length of program, 
not to exceed 5 years. See 22 CFR 62.20(i)(1).
     Short-term scholars: The length of program, not to exceed 
6 months. See 22 CFR 62.21(g).
     Trainees and interns: General trainees may be granted 18 
months; trainees in the field of agriculture, hospitality and tourism 
may be granted 12 months, and interns may be granted 12 months. See 22 
CFR 62.22(k).
     College and university students: The length of time 
necessary to complete the goals and objectives of the training. See 22 
CFR 62.23(f)(4). For undergraduate and pre-doctoral training, not to 
exceed 18 months, and for post-doctoral training, not to exceed a total 
of 36 months. 22 CFR 62.23(f)(4). Students enrolled in a degree program 
do not have a definite admission period but must comply with duration 
of participation requirements at 22 CFR 62.23(h).\134\ If enrolled in a 
non-degree program, students may be granted up to 24 months. See 
62.23(h)(2).
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    \134\ A student who is in a degree program may be authorized to 
participate in the Exchange Visitor Program as long as he or she is 
either: (i) Studying at the post-secondary accredited academic 
institution listed on his or her Form DS-2019 and: (A) Pursuing a 
full course of study as set forth in paragraph (e) of this section, 
and (B) Maintaining satisfactory advancement towards the completion 
of the student's academic program; or (ii) Participating in an 
authorized academic training program as permitted in paragraph (f) 
of this section. 22 CFR 62.23(h).
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     Student intern: Up to 12 months. See 22 CFR 62.23(h)(3) 
and (i).
     Teachers: The length of time necessary to complete the 
program, not to exceed 3 years, unless a specific extension of 1 or 2 
years is authorized by DOS. See 22 CFR 62.24(j).
     Secondary school students: Not more than two academic 
semesters (or quarter equivalency). See 22 CFR 62.25(c)(2).
     Specialists: The length of time necessary to complete the 
program, not to exceed 1 year. See 22 CFR 62.26(i).
     Alien physicians: Limited to 7 years, unless the alien 
physician has demonstrated to the satisfaction of the Secretary of 
State that the country to which the alien physician will return at the 
end of additional specialty education or training has an exceptional 
need for an individual with such additional qualification. See 22 CFR 
62.27(e).
     International visitors: The length of time necessary to 
complete the program, not to exceed 1 year. See 22 CFR 62.28(g).
     Government visitors: The length of time necessary to 
complete the program, not to exceed 18 months. See 22 CFR 62.29(h).
     Camp counselors: 4 months. See 22 CFR 62.30(h)(2).
     Au pairs: Not more than 1 year. See 22 CFR 62.31(c)(1).
     Summer work travel: Up to 4 months. See 22 CFR 62.32(c).
    As with the F category, many J exchange visitors are admitted to 
participate in programs shorter than 4 years. Some J exchange visitors, 
like most F nonimmigrants, enter as post-secondary students. Similar to 
the F-1 Ph.D. student, some J nonimmigrants, like physicians, may need 
to stay longer than a 4-year period to complete their J program. 
However, many categories of J nonimmigrants would be covered by the 
same 4-year period proposed for F nonimmigrants. As such, it makes 
sense for DHS to treat these similarly situated nonimmigrants in a 
consistent manner by providing them with the same proposed, maximum 
admission period. See proposed 8 CFR 214.2(j)(1)(ii)(A). This would 
help ensure compliance by providing consistency between the J program 
and the F program, which have programmatic similarities.
    DHS proposes to retain the 30-day period that J nonimmigrants are 
provided before the report date or start of the approved program listed 
on the DS-2019 and the 30-day period at the end of the program. As DHS 
expects these nonimmigrants to use the 30-day period of time after the 
program ends to prepare for departure, the Department proposes to 
revise the language currently in 8 CFR 214.2(j)(1)(ii) that reads, 
``period of 30 days for the purposes of travel or for the period 
designated by the Commissioner. . .,'' to instead read ``a period of 30 
days at the end of the program for the purposes of departure or to 
otherwise maintain status.'' See proposed 8 CFR 214.2(j)(1)(ii)(C). DHS 
believes that the proposed language more accurately reflects the 
purpose of the period at the end of the program and accounts for other 
ways J exchange visitors may maintain status during this period, such 
as by filing an EOS or change of status application.

[[Page 60558]]

    Similar to the limitations proposed in 8 CFR 214.2(f)(20), the 
factors proposed in section (j)(6) focus on fraud and national security 
concerns. The factors DHS identified for limiting initial admission to 
a maximum of 2 years are:
     Certain countries. Like F nonimmigrants, exchange visitors 
who were born in or are citizens of countries listed in the State 
Sponsor of Terrorism List. DHS would publish a notice in the Federal 
Register listing the countries whose nationals are subject to a 2-year 
maximum period of stay in J-1 status. Changes to the list would be made 
by issuance of a new Federal Register Notice. As the State Sponsor of 
Terrorism List are countries determined by the Secretary of State to 
have repeatedly provided support for acts of international terrorism, 
DHS believes it is appropriate to apply additional scrutiny to those 
who were born in these countries or are citizens of these countries who 
are temporarily in the United States to ensure that these aliens are 
complying with the terms of their admission and that they do not pose 
risks to the national security of the United States.
     Countries with high overstay rates. Like F nonimmigrants, 
exchange visitors who are citizens of countries with a nonimmigrant 
student and exchange visitor total overstay rate greater than 10 
percent according to the most recent DHS Entry/Exit Overstay 
report.\135\ The DHS Entry/Exit Overstay report compiles overstay rates 
for different classifications. It provides overstay rates per country 
for F, M, and J nonimmigrants together, rather than a separate overstay 
rate by classification, per country. Given the overlap between the F 
and J nonimmigrant classifications, utilizing the data for both 
exchange visitors and students to establish overstay rates is useful in 
that it may deter aliens who may attempt to seek admission in one 
status rather than the other in order to obtain a lengthier period of 
admission. DHS would publish a notice in the Federal Register listing 
the countries whose citizens are subject to a 2-year maximum period of 
stay in J-1 status. Changes to the list would be made by issuance of a 
new Federal Register Notice. Placing restrictions on citizens of 
countries with high overstay rates, consistent with the percent 
described by the Administration as a `high' overstay rate for the 
purpose of enabling DHS and DOS to ``immediately begin taking all 
appropriate actions that are within the scope of their respective 
authorities to reduce overstay rates for all classes of nonimmigrant 
visas,'' \136\ could encourage future compliance by incentivizing 
timely departures so that a country that exceeds the threshold might be 
removed from the list of high overstay rates on the DHS Entry/Exit 
report. The restriction also would permit DHS to have more frequent 
scrutiny of individuals from countries that present more risk, such 
that the agency may sooner ascertain whether an alien has violated 
their status.
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    \135\ The overstay report for 2018 can be found at https://www.dhs.gov/sites/default/files/publications/19_0417_fy18-entry-and-exit-overstay-report.pdf, see Table 4, Column 6.
    \136\ See Presidential Memorandum on Combating High Nonimmigrant 
Overstay Rates (April 22, 2019) available at https://www.whitehouse.gov/presidential-actions/presidential-memorandum-combating-high-nonimmigrant-overstay-rates/ (last visited April 14, 
2020). The Presidential Memorandum identified countries with a total 
overstay rate greater than 10 percent in the combined B-1 and B-2 
nonimmigrant visa category as appropriate for additional engagement 
by the DOS, which ``should identify conditions contributing to high 
overstay rates among nationals of those countries. . .''
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     U.S. national interest. DHS proposes to include a factor 
to limit the maximum period of admission to 2 years if it serves the 
U.S. national interest. As in the F program, this provision would 
provide the Secretary of Homeland Security and Secretary of State the 
requisite flexibility to identify potential risks of fraud and abuse to 
the United States' immigration programs and risks to national security 
that do not fit precisely within the other named categories. If the 
Department determines that certain technical fields pose a national 
security risk, more frequent vetting of the exchange visitors may serve 
in the national interest to mitigate the threats. If DHS determines 
that certain circumstances would be in the U.S. national interest to 
limit admission to a 2-year maximum period, then it would provide the 
public advance notice of such circumstance through publication of a 
Federal Register Notice.
     E-Verify participation. While this proposed change would 
not impose a requirement that the program sponsor or host institution 
be enrolled in or be a participant in good standing in E-Verify, it 
would encourage those organizations that are not currently enrolled or 
in good standing to attain such status rather than potentially lose 
future exchange visitors. E-Verify participation helps to combat 
document fraud, identifies errors in certain Government records 
belonging to employees, and may be used by law enforcement agencies to 
aid in the prevention of identity theft.\137\ E-Verify participation is 
also a fast and easy way for sponsors and host institutions to 
demonstrate their commitment to maintaining a legal workforce.
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    \137\ E-Verify.gov website, How does E-Verify use my 
information?, https://www.e-verify.gov/faq/privacy/how-does-e-verify-use-my-information (last visited Apr.14, 2020).
---------------------------------------------------------------------------

    Like the limiting factors for admission of F students, any one 
factor could trigger the designation of a maximum 2-year period of 
stay. And, like F students, J exchange visitors who depart the United 
States or for any reason would need to file an EOS application become 
subject to all terms and conditions of admission, including the 2-year 
limitation. This would include cases where an exchange visitor is 
admitted for a 4-year period, but in the midst of their 4-year 
admission, a new Federal Register Notice is published, making the 
exchange visitor subject to the 2-year admission; even though the alien 
generally may remain in the United States for the remainder of the 4-
year period without seeking an extension of stay, if they depart the 
United States or for any reason need to file an EOS application, then 
they will be subject to the 2-year maximum period of admission. See 
proposed 8 CFR 214.2(j)(6)(iii).
    The ultimate decision as to whether to admit the alien, and the 
maximum period of admission for such alien, would remain with the 
Secretary of Homeland Security, consistent with the Secretary's 
statutory obligation to administer and enforce the nation's immigration 
laws. See, e.g., INA 103(a), 235; see also proposed 8 CFR 214.2(j)(6). 
The first FRN listing the countries triggering the 2-year admission 
period, along with other determinations related to this provision,\138\ 
would be published contemporaneously with the final rule. Subsequent 
updates would be made as needed and would provide stakeholders with 
notice in advance of any change.
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    \138\ This information is currently available at https://ope.ed.gov/dapip/#/home (last visited Jan. 26, 2020).
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2. Dependents
    Consistent with the extension of stay eligibility requirements for 
the J-1 found at 8 CFR 214.1(c)(4), DHS proposes to codify the policy 
that extensions for spouses or children who are granted J-2 status 
based on their derivative relationship as a spouse or child of the 
principal J-1 nonimmigrant may not exceed the period of authorized 
admission of the principal J-1. The current regulations state that the 
initial admission of a spouse or child may not be for longer than the 
principal exchange visitor.\139\ That is, the authorized period of 
initial admission

[[Page 60559]]

for J-2 dependents would be subject to the same requirements as the J-1 
exchange visitor and may not exceed the period of authorized admission 
of the principal J-1 exchange visitor. See proposed 8 CFR 
214.2(j)(1)(ii)(B).
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    \139\ 8 CFR 214.2(j)(1)(ii).
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ii. EOS
    The shift from D/S to admission for a fixed time period would mean 
that J nonimmigrants wishing to remain in the United States beyond 
their authorized period of stay would need to file an EOS application 
with USCIS. Like other nonimmigrants applying for EOS, they would 
currently need to file a Form I-539 in accordance with that form's 
instructions, with the required fee, and including any biometrics or 
interview as required by 8 CFR 103.16. See proposed 8 CFR 
214.2(j)(1)(iv)(A). J-1s seeking a program extension will continue to 
first request such an extension through the RO, as provided for under 
current regulations.\140\ If such a program extension is recommended by 
the RO, the J-1 must apply for an EOS with USCIS to remain in the U.S. 
beyond the status expiration date on their I-94.
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    \140\ See 22 CFR 62.43, describing J-1 program extension 
procedures.
---------------------------------------------------------------------------

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

[[Page 60560]]

update changes in SEVIS, and this change provides for a common 
timeframe. In that same provision, DHS proposes to strike the sentence 
which references non-SEVIS programs, as SEVIS enrollment is now a 
mandatory requirement. Id. Finally, DHS proposes changes to the 
regulatory provisions to refer to J nonimmigrants as ``exchange 
visitors,'' to promote consistency with DOS regulations.
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    \142\ 22 CFR 62.10(d)(3) clarifies that the J-1 exchange visitor 
must inform the RO or ARO of address changes within ``10 calendar 
days'' of the change, and 22 CFR 62.10(d)(4) states that the 
reporting window for ROs or AROs to update SEVIS is ``10 business 
days'' from receiving the J-1 exchange visitor's address change 
notification from the J-1 exchange visitor.
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H. Change of Status

    DHS is proposing to add two provisions to 8 CFR part 248, which 
governs changes of status. First, DHS is proposing to clarify that 
aliens who were granted a change to F or J status before the effective 
date of the final rule, and are applying for admission as an F or J 
after the final rule's effective date may be admitted up to the program 
end date as noted on the Form I-20 or DS-2019 that accompanied the 
change of status application that was approved prior to the alien's 
departure, not to exceed 4 years, unless they are subject to a 2-year 
admission proposed in 8 CFR 214.2(f)(20) or (j)(6), plus a period of 30 
days following their program end date, to prepare for departure or to 
otherwise seek to obtain lawful authorization to remain in the United 
States. See proposed 8 CFR 248.1(e). That is, CBP may admit these 
aliens into the United States up to the program end date, on the Form 
I-20 or DS-2019 that accompanied the approved change of status prior to 
the alien's departure, plus an additional 30 days, thus ensuring that 
they do not get more time than allocated by their program end date, 
since these Fs and Js would have received an admission period for D/S 
on the I-94 that accompanied the change of status approval.
    Second, DHS is proposing to codify long-standing policy that, when 
an alien timely files an application to change to another nonimmigrant 
status, including F or J status, but departs the United States while 
the application is pending, USCIS will consider the application 
abandoned.\143\ Under INA 248, DHS may authorize a change of status to 
a nonimmigrant who, among other things, continues to maintain his or 
her status. Thus, pursuant to a policy that has been in place for 
decades, the change of status application of an alien who travels 
outside of the United States during the pendency of his or her request 
for a change of status is deemed abandoned.\144\ See proposed 8 CFR 
248.1(g). Note, however, if there is an underlying petition filed along 
with the change of status, that petition may still be approved, but the 
alien generally would have to obtain the necessary visa at a U.S. 
Embassy or Consulate abroad before applying for admission to the United 
States in the new nonimmigrant classification.
---------------------------------------------------------------------------

    \143\ See Letter, Bednarz, Chief, NIV Branch, Adjudications CO 
238-C (Oct. 29, 1993), reprinted in 70 No. 46 Interpreter Releases 
1604, 1626 (Dec. 6, 1993); INS Memorandum, HQ 70/6.2.9, Travel After 
Filing a Request for a Change of Nonimmigrant Status, (June 18, 
2001).
    \144\ Id.
---------------------------------------------------------------------------

    Additionally, DHS proposes minor technical edits: Replacing the 
words ``A district director'' in newly re-designated paragraph (g) with 
``USCIS''; replacing ``shall'' in newly re-designated paragraph (g) 
with ``will''; and replacing all instances of ``shall'' with ``will'' 
in newly re-designated paragraph (h).

I. Classes of Aliens Authorized To Accept Employment

    DHS is proposing the following updates to regulations pertaining to 
employment authorization: First, as discussed above, DHS proposes to 
change 8 CFR 274a.12(b)(6)(i) to conform with proposed revisions in 8 
CFR 214.2(f)(9)(i), which as discussed above, would terminate on-campus 
employment as of the alien's fixed date of admission as noted on his or 
her Form I-94. If the alien has timely applied for an extension of 
stay, however, pursuant to proposed 8 CFR 214.2(f)(5)(vii), the current 
on-campus and severe economic hardship employment authorization of such 
an alien may be automatically extended for up to 180 days, or until 
adjudicated by USCIS, whichever is earlier, as described in that 
section. See proposed 8 CFR 274a.12(b)(6)(i). In cases where employment 
is authorized pursuant to severe economic hardship resulting from 
emergent circumstances under 8 CFR 214.2(f)(5)(v), the validity period 
of the employment authorization is provided by notice in the Federal 
Register and indicated by a Certificate of Eligibility for Nonimmigrant 
(F-1/M-1) Students, Form I-20 or successor form, endorsed by the 
Designated School Official recommending such an extension. See proposed 
8 CFR 274a.12(b)(6)(i).
    Second, as discussed above, DHS proposes to clarify that CPT 
terminates on the alien's fixed date of admission as noted on their 
Form I-94. An F-1 alien whose fixed date of admission noted on their 
Form I-94 has expired may not engage in CPT until USCIS approves an 
alien's EOS request. See proposed 8 CFR 274a.12(b)(6)(iii).
    Third, as discussed above, DHS proposes to strike the reference to 
D/S in 8 CFR 274a.12(b)(6)(v) and update the language to be consistent 
with proposed cap-gap provisions at 8 CFR 214.2(f)(5)(vi).
    Fourth, as discussed above, in proposed 8 CFR 274a.12(b)(10), DHS 
proposes to cross-reference proposed language in 8 CFR 214.2(i) for I 
nonimmigrants, which clarifies that limitations currently in the 
provision (an alien in this status may be employed only for the 
sponsoring foreign news agency or bureau) allow for freelance and self-
employment situations where the I nonimmigrant may not have a 
``sponsoring'' foreign news agency or bureau, and instead would need to 
show, among other requirements indicated in proposed 8 CFR 214.2(i), 
that they are working for a qualifying foreign media organization.

V. Statutory and Regulatory Requirements

    DHS developed this proposed rule after considering numerous 
statutes and executive orders related to rulemaking. The below sections 
summarize our analyses based on a number of these statutes or executive 
orders.

A. Executive Orders 12866, 13563, and 13771: Regulatory Review

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') direct agencies 
to assess the costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health, and safety effects; distributive impacts; and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, reducing costs, harmonizing rules and promoting 
flexibility. Executive Order 13771 (``Reducing Regulation and 
Controlling Regulatory Costs'') directs agencies to reduce regulation 
and control regulatory costs and provides that ``for every one new 
regulation issued, at least two prior regulations be identified for 
elimination, and that the cost of planned regulations be prudently 
managed and controlled through a budgeting process.''
    This rule has been designated a ``significant regulatory action'' 
that is economically significant, under section 3(f)(1) of Executive 
Order 12866. Accordingly, the rule has been reviewed by the Office of 
Management and Budget.
1. Summary
    Currently, aliens in the F (academic student), J (exchange 
visitor), and I

[[Page 60561]]

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

                                                      Table 1--OMB A-4 Accounting Statement (2018$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                  Source citation (RIA,
               Category                           7 Percent discount rate                     3 Percent discount rate                preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
BENEFITS:
    Annualized Monetized $millions/     N/A.......................................  N/A.......................................  N/A.
     year.
    Annualized Quantified.............  N/A.......................................  N/A.......................................  N/A.
                                       ----------------------------------------------------------------------------------------
    Qualitative.......................   Would enhance DHS's ability to enforce the unlawful presence provisions of     Preamble, RIA Section
                                         the INA at conclusion of their fixed period of admission.                               VI.A.4.
                                         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 nonimmigrants 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/     $237.8....................................  $229.9....................................  RIA Section VI.A.4.
     year.
    Annualized quantified.............  N/A.......................................  N/A.......................................  N/A.
                                       ----------------------------------------------------------------------------------------
    Qualitative.......................   Burden associated with government requests for additional information from or  RIA Section V.A.4.
                                         in-person interviews with nonimmigrants.
                                         Potential reduction in enrollment of nonimmigrant students and exchange
                                         visitors.
                                         CBP and USCIS costs for proposed rule familiarization and training and
                                         additional steps at ports of entry to assess fixed period of time for admission.
                                         Costs associated with EOS requests from F-1 nonimmigrants attending schools
                                         that are not enrolled in E-Verify.
                                         Potential burden to schools/program sponsors and DHS to update batch
                                         processing systems that facilitate exchange of data between DSOs/ROs and SEVIS.
                                         Potential costs to F-1 students and schools from limitations 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/     N/A.                                                                                    N/A.
     year.
    Annualized quantified.............  N/A.                                                                                    N/A.

[[Page 60562]]

 
    Qualitative.......................  Potential reduction in fees collected by SEVP and DOS to cover the cost of the          RIA V.A.4.
                                         programs due to a potential reduction in international enrollment.
--------------------------------------------------------------------------------------------------------------------------------------------------------
               Category                                                         Effects                                              Source Citation
                                                                                                                                (RIA, preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
State, Local, and/or Tribal Government  Some public schools would incur incremental costs to comply with the proposed rule and  RIA V.A.4.
                                         a potential decline in international enrollment.
Small business........................  Some small businesses would incur incremental costs to comply with the proposed rule.   Initial Regulatory
                                                                                                                                 Flexibility Analysis.
Wages.................................  None.                                                                                   N/A.
Growth................................  None.                                                                                   N/A.
--------------------------------------------------------------------------------------------------------------------------------------------------------

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

[[Page 60563]]

analytical software platform.\145\ The proposed rule's docket provides 
the SQL code used to query SEVIS and ADIS and the R code used to 
implement the logic for this analysis.
---------------------------------------------------------------------------

    \145\ https://www.r-project.org/about.html.
---------------------------------------------------------------------------

Estimating the Affected Population
    To identify potentially affected nonimmigrants, DHS used data from 
several agencies. Data for F and J nonimmigrants were extracted from 
the Student and Exchange Visitor Information System (SEVIS), including 
data on student participation in OPT, and J exchange visitor program 
sponsors. The Student and Exchange Visitor Program (SEVP) oversees 
schools certified to enroll F and M nonimmigrant students and their 
dependents. The Department of State (DOS) manages Exchange Visitor 
Programs for nonimmigrant exchange visitors in the J classification, 
and their dependents. Both SEVP and DOS use SEVIS to track and monitor 
schools; exchange visitor programs; and F, M, and J nonimmigrants while 
they are temporarily in the United States.\146\
---------------------------------------------------------------------------

    \146\ More information on SEVIS can be found at https://www.ice.gov/sevis/overview.
---------------------------------------------------------------------------

    Data on I nonimmigrants were extracted from the CBP Arrival and 
Departure Information System (ADIS). ADIS consolidates entry, exit, and 
admission status information from DHS components, DOS, and the Canada 
Border Services Agency. ADIS contains biographic information, biometric 
indicators, and encounter data.\147\
---------------------------------------------------------------------------

    \147\ More information on ADIS can be found at https://www.dhs.gov/publication/arrival-and-departure-information-system.
---------------------------------------------------------------------------

    DHS used nonimmigrant student and exchange visitor program sponsor 
data from SEVIS and ADIS for fiscal year (FY) 2016, FY 2017, and FY 
2018 to estimate the potentially affected population. For each year of 
data, DHS estimated the total number of nonimmigrants in each category 
and the total number of individuals who would have to file an EOS in 
that year if the rule were in effect. Next, DHS used an average of 
these 3 years as a best estimate of the affected population.
    To estimate the total population of nonimmigrants in each year of 
the analysis, DHS took steps to remove incomplete and incorrect data 
entries from the SEVIS and ADIS data. For F and J nonimmigrants, DHS 
first eliminated records that were missing data critical to the 
analysis such as data entries without start and end dates for the 
individual's current program or entries that had a program start date 
that occurred after the program end date as this indicates that the 
start and end dates were entered improperly. In each fiscal year of 
data, this resulted in elimination of approximately 4 percent of unique 
SEVIS entries for F nonimmigrants but no appreciable data loss for J 
nonimmigrants. In order to only select individuals who were enrolled 
during the year of analysis, DHS selected entries that had a program 
end date that occurred on or after the beginning of the year of 
analysis,\148\ and had a program start date that occurred on or before 
the end of the year of analysis.\149\ DHS also took steps to (1) remove 
outliers in the data by removing data entries with an end date beyond 
2050, (2) identify unique records by removing duplicate entries, and 
(3) retain a single entry for nonimmigrants with multiple records by 
keeping either the entry linked to a currently active entry, or if 
there were no active entries, keeping the entry with the latest end 
date. In total, DHS reduced the number of entries by approximately 
240,000 records for each fiscal year of data for the F nonimmigrants 
and approximately 4,000 records for each fiscal year of data for the J 
nonimmigrants. This data reduction has been largely driven by 
elimination of multiple entries associated with a unique SEVIS 
identifier, rather than by elimination of incomplete entries.\150\
---------------------------------------------------------------------------

    \148\ In 2016, this cutoff is 10/01/2015; in 2017, it is 10/01/
2016; in 2018 it is 10/01/2017.
    \149\ In 2016, this cutoff is 9/30/2016; in 2017, it is 9/30/
2017; in 2018 it is 9/30/2018.
    \150\ There are approximately 1.15 entries per unique SEVIS 
identifier for F nonimmigrants and 1.01 entries per unique SEVIS 
identifier for J nonimmigrants.
---------------------------------------------------------------------------

    Table 2 shows the estimated total number of F, J, and I 
nonimmigrants for each fiscal year from 2016 to 2018, as well as the 3-
year average. The F estimates include F-1 and F-2 nonimmigrants, J 
estimates include J-1 and J-2 nonimmigrants, and I estimates include 
both principal I and dependent I nonimmigrants as there are no multiple 
categories of I visas. Over the 3-year period, there were approximately 
1.7 million F nonimmigrants, 607,000 J nonimmigrants, and 35,000 I 
nonimmigrants active per year. Overall, approximately 2.3 million 
persons participated annually in the F, J, and I 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 nonimmigrant F, J, and I 
population would be affected by the proposed rule provisions. DHS 
applied the criteria contained within the proposed rule to estimate the 
subset of nonimmigrants that would be required to extend their 
authorized period of admission in each year of the analysis in order to 
continue the duration of studies observed in the fiscal year 2016-2018 
SEVIS data. These criteria vary across the nonimmigrant categories.
Estimating EOS Requests for F Nonimmigrants
    F-1 nonimmigrants are bona fide students who seek to enter the 
United States temporarily and solely for the purpose of pursuing a full 
course of study at an academic or language training school certified by 
SEVP. F-2 nonimmigrants are their dependents. F nonimmigrants include, 
but are not limited to, individuals enrolled in language training, 
bachelor's degrees, and those engaged in OPT.
    This rule proposes a fixed period of admission of up to 2 or 4 
years for F nonimmigrants, depending on whether a nonimmigrant presents 
heightened concerns related to fraud, abuse, and national security. The 
proposed rule

[[Page 60564]]

includes the following criteria that could result in an EOS request:
     Program Length. The nonimmigrant's program length exceeds 
4 years; \151\
---------------------------------------------------------------------------

    \151\ DHS acknowledges that recent estimates of median time to 
bachelor's degree completion in the United States published by the 
Department of Education's National Center for Education Statistics 
(NCES) is 52 months. See U.S. Department of Education, National 
Center for Education Statistics, Status and Trends in the Education 
of Racial and Ethnic Groups 2018, available at https://nces.ed.gov/programs/raceindicators/indicator_red.asp. NCES statistics on all 
postsecondary students in the U.S. also show factors positively 
associated with completion of bachelor's degree in under four years 
include financial dependent status and age of less than 23 years. 
The prevalence of U.S. citizens who are studying part-time in the 
NCES data indicates that the NCES data is not representative of the 
time to completion for students studying full time, including 
foreign students. See U.S. Department of Education, National Center 
for Education Statistics, Fast Facts, available at https://nces.ed.gov/fastfacts/display.asp?id=569. A longitudinal study of 
students beginning their postsecondary studies in 2011-2012 shows 
75% of students completing a full course-load in their freshman year 
alone finish within 4 years. See U.S. Department of Education, 
National Center for Education Statistics, Courses Taken, Credits 
Earned, and Time to Degree: A First Look at the Postsecondary 
Transcripts of 2011-12 Beginning Postsecondary Students, available 
at https://nces.ed.gov/pubs2020/2020501.pdf. DHS does not assert 
that all foreign students will complete their course of study on 
time and has analyzed and discussed SEVIS data that forms the basis 
of our estimated number of bona fide extension requests resulting 
from this proposed rule.
---------------------------------------------------------------------------

     Certain Countries. The nonimmigrant was born in or is a 
citizen of a country on the State Sponsors of Terrorism list, or is a 
citizen of a country with a student and exchange visitor total overstay 
rate greater than 10 percent according to the most recent DHS Entry/
Exit Overstay report; \152\
---------------------------------------------------------------------------

    \152\ A list of State Sponsors of Terrorism can be found at 
https://www.state.gov/state-sponsors-of-terrorism/. The overstay 
report for 2018 can be found at https://www.dhs.gov/sites/default/files/publications/19_0417_fy18-entry-and-exit-overstay-report.pdf, 
see Table 4, Column 6. The DHS 2017 Entry/Exit Overstay Report can 
be found at https://www.dhs.gov/sites/default/files/publications/18_1009_S1_Entry-Exit-Overstay_Report.pdf, see Table 4, Column 6. 
The DHS 2016 Entry/Exit Overstay Report can be found at https://www.dhs.gov/sites/default/files/publications/Entry%20and%20Exit%20Overstay%20Report%2C%20Fiscal%20Year%202016.pdf,
 see Table 4, Column 6.
---------------------------------------------------------------------------

     Other Factors of U.S. National Interest. The nonimmigrant 
is subject to other factors determined to be in the U.S. national 
interest, which may include but not be limited to circumstances where 
there may be national security concerns or risks of fraud and abuse. 
These factors may be incorporated into a Federal Register Notice (FRN) 
to limit a student's period of stay to a 2-year maximum;
     Accreditation. The nonimmigrant is enrolled at a post-
secondary school that is not accredited by an accrediting body 
recognized by the Secretary of Education;
     Extended Period of Admission. The nonimmigrant makes a 
change to his or her program that affects the program end date and 
requires an extension of stay, such as a change from OPT to a STEM OPT 
extension or a change in educational level; and
     E-Verify Enrollment. The nonimmigrant's school is not 
enrolled in E-Verify or is not a participant in good standing in E-
Verify as determined by USCIS.
    In this analysis, DHS does not present the number of individuals 
meeting each limitation criterion, as some individuals may meet 
multiple criteria. The affected population estimates reflect the 
overall effect of all of the NPRM's limitations, rather than the 
marginal effects of each limitation. To estimate EOS requests, DHS 
analyzed nonimmigrant data to identify individuals who would be subject 
to the limitation criteria in the year of analysis using the following 
steps:
    1. Program Length. This analysis assumes that individuals would 
require an EOS in the year of analysis if they had a program duration 
longer than 4 years, were not in the final year of their program, and 
were in a year of their program that was a multiple of four (e.g., 4, 
8, 12).
    2. Certain Countries. The rule proposes to limit the fixed time 
period of admission of up to 2 years for F nonimmigrants who were born 
in or are citizens of countries listed on the State Sponsors of 
Terrorism List or who are citizens of countries with a student and 
exchange visitor total overstay rate greater than 10 percent according 
to the most recent DHS Entry/Exit Overstay report.\153\ F nonimmigrants 
subject to this limit would be eligible for an EOS of up to 2 years. To 
estimate the number of individuals meeting these criteria and needing 
an EOS in the year of analysis, DHS identified individuals who were 
born in or are citizens of countries on the State Sponsors of Terrorism 
list or who are citizens of countries with a student and exchange 
visitor total overstay rate greater than 10 percent according to the 
most recent DHS Entry/Exit Overstay report, not in the last year of 
their program, in a year of their program that was a multiple of two 
(e.g., year 2, 4, 6) and whose program duration is greater than 2 
years.
---------------------------------------------------------------------------

    \153\ A list of State Sponsors of Terror can be found at https://www.state.gov/state-sponsors-of-terrorism/. The overstay report for 
2019 can be found at https://www.dhs.gov/sites/default/files/publications/20_0513_fy19-entry-and-exit-overstay-report.pdf, see 
Table 4, Column 6. The overstay report for 2018 can be found at 
https://www.dhs.gov/sites/default/files/publications/19_0417_fy18-entry-and-exit-overstay-report.pdf, see Table 4, Column 6. The 2017 
Overstay Report can be found at https://www.dhs.gov/sites/default/files/publications/18_1009_S1_Entry-Exit-Overstay_Report.pdf, see 
Table 4, Column 6. The 2016 Overstay Report can be found at https://www.dhs.gov/sites/default/files/publications/Entry%20and%20Exit%20Overstay%20Report%2C%20Fiscal%20Year%202016.pdf,
 see Table 4, Column 6. The analysis uses 87 countries with overstay 
rate greater than 10 percent in at least one of the analysis years 
(i.e., 2016, 2017, or 2018).
---------------------------------------------------------------------------

    3. Other Factors of U.S. National Interest. Although the proposed 
rule does not explicitly list other factors that may serve the U.S. 
national interest, the analysis uses enrollment in the nuclear physics 
or nuclear engineering courses as examples of courses that could pose a 
risk to U.S. national security to estimate the potential impacts of 
this proposed requirement. The analysis assumes that nonimmigrants 
would require an EOS in the year of analysis if they were enrolled in 
these courses of study, not in the last year of their program, in a 
year of their program that was a multiple of two (e.g., year 2, 4, 6), 
and had a program duration of greater than 2 years.
    4. Accreditation. Similarly, the analysis assumes that 
nonimmigrants would require an EOS if they were enrolled at a post-
secondary school not accredited by an accrediting body recognized by 
ED, not in the last year of their program, in a year of their program 
that was a multiple of two (e.g., year 2, 4, 6), and had a program 
duration of greater than 2 years.
    5. Extended Period of Admission. DHS identified nonimmigrants 
within each fiscal year who needed to change their authorized period of 
admission in the year of analysis. Individuals switching from an OPT 
program to a Science, Technology, Engineering, or Math (STEM) OPT 
extension program, individuals requesting additional time to complete 
their program of study, and individuals changing from one educational 
level to another, among others, were included. Individuals changing 
majors, transferring schools, enrolling in pre-completion OPT, or 
making other changes to their course of study that would not affect 
their program end date were not considered to require an EOS in the 
year of analysis if they did not meet any other limiting criteria that 
would require them to extend.
    6. E-Verify Enrollment. To estimate the number of students affected 
by this proposed provision, DHS needed to identify nonimmigrants that 
were enrolled at a post-secondary school not enrolled in E-Verify or 
not a participant in good standing in E-Verify, not in the last year of 
their program, in a year of their program that was a multiple of two

[[Page 60565]]

(e.g., year 2, 4, 6), and had a program duration of greater than 2 
years. DHS worked with both nonimmigrant data and employer data, 
attempting to match E-Verify enrollment with students' schools. 
However, because the datasets did not have a common, unique key, DHS 
was unable to comprehensively merge the student-based data with the 
employer-based data. Therefore, DHS did not quantify the marginal 
effect of the E-Verify enrollment provision.\154\ As a result, the 
estimated number of extensions shown in Table 3 does not include 
extensions that would have been filed by nonimmigrants meeting all 
other 4-year eligibility requirements, but attending institutions that 
do not participate in E-Verify. However, DHS conjectures that this bias 
is unlikely to be significant. Approximately 20% of the educational 
services industry establishments already participate in E-Verify 
program.\155\ These establishments employ 80% this industry's workers 
nation-wide. Assuming that the number of F-1 nonimmigrants is 
proportional to the number of employees in the educational services 
establishments, we expect the share of F-1 nonimmigrants in schools 
already enrolled in E-Verify to be substantial. This observation is 
further corroborated by the fact that 61% of F-1 nonimmigrants in SEVIS 
data are in 14% of schools that DHS has been able to match to E-Verify 
enrollment data.\156\
---------------------------------------------------------------------------

    \154\ See Section VI.A.4 for additional discussion of the 
impacts associated with the E-Verify provision.
    \155\ The nation-wide number of establishments and employment in 
the educational services industry (NAICS 61) comes from U.S. Census 
Bureau 2018 County Business Patterns data. The current E-Verify 
enrollment by establishment size category in the educational 
services industry comes from DHS USCIS E-Verify data at https://www.e-verify.gov/about-e-verify.
    \156\ DHS used name- and location-based fuzzy matching procedure 
to establish approximate links between 7,689 active schools in SEVIS 
and 2,264 unique schools in E-Verify enrollment data. Only 1,100 
schools have been able to be linked, and cursory review established 
that the pool of unmatched SEVIS schools does include other schools 
that may be matched manually. As such, DHS believes that 14% match 
rate for active schools in SEVIS underestimates the true E-Verify 
participation rate.
---------------------------------------------------------------------------

    DHS calculated the total number of expected EOS requests from these 
criteria for FY 2016, FY 2017, and FY 2018, and used these yearly 
estimates to calculate the annual average number of EOS requests for 
both F-1 and F-2 nonimmigrants.\157\ Table 3 shows the EOS estimates 
for F nonimmigrants. DHS estimates that approximately 249,000 F-1 
nonimmigrants would request an EOS per year, while approximately 31,000 
F-2 nonimmigrants would be required to apply for an EOS per year.
---------------------------------------------------------------------------

    \157\ These numbers were developed using data from SEVIS. The 
SEVIS database was queried to extract data from FY 2016-2018. DHS 
used R Statistical Software to develop logic allowing DHS to 
identify individuals meeting the limitations specified in the 
proposed rule. DHS provides the SQL code used to query the SEVIS 
database and the R code used to develop the logic for this analysis 
on the proposed rule's docket.

                          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 Visitor Participants
    J-1 exchange visitor participants are individuals approved to 
participate in work and study-based exchange visitor programs, and J-2 
nonimmigrants are their dependents. For example, J exchange visitor 
participants include individuals enrolled in alien physician programs, 
camp counselors, and au pairs, among others.\158\
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    \158\ J exchange visitor programs include: Professors and 
research scholars; short-term scholars; trainees and interns; 
college and university students; teachers; secondary school 
students; specialists; alien physicians; international visitors; 
government visitors; camp counselors; au pairs; and summer work 
travel. See INA 101(a)(15)(j), 8 U.S.C. 1101(a)(15)(j) and 22 CFR 
62.20-62.32.
---------------------------------------------------------------------------

    The proposed rule would impose a fixed period of admission of up to 
2 or 4 years on J nonimmigrants, depending on limitations on the length 
of admission. In order to identify the potentially affected J 
nonimmigrants, DHS estimated the number of individuals in FY 2016, FY 
2017, and FY 2018 meeting the following limitation criteria which would 
require an EOS under the NPRM:
     Program Length. The nonimmigrant's program length exceeds 
4 years;
     Certain Countries. The nonimmigrant was born in or is a 
citizen of a country on the State Sponsors of Terrorism list or is a 
citizen of a country with a greater than 10 percent total overstay rate 
for students and exchange visitors according to the most recent DHS 
Entry/Exit Overstay report; \159\
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    \159\ A list of State Sponsors of Terrorism can be found at 
https://www.state.gov/state-sponsors-of-terrorism/. The overstay 
report for 2019 can be found at https://www.dhs.gov/sites/default/files/publications/20_0513_fy19-entry-and-exit-overstay-report.pdf, 
see Table 4, Column 6. The overstay report for 2018 can be found at 
https://www.dhs.gov/sites/default/files/publications/19_0417_fy18-entry-and-exit-overstay-report.pdf, see Table 4, Column 6. The 2017 
Overstay Report can be found at https://www.dhs.gov/sites/default/files/publications/18_1009_S1_Entry-Exit-Overstay_Report.pdf, see 
Table 4, Column 6. The 2016 Overstay Report can be found at https://www.dhs.gov/sites/default/files/publications/Entry%20and%20Exit%20Overstay%20Report%2C%20Fiscal%20Year%202016.pdf,
 see Table 4, Column 6. The analysis uses 87 countries with overstay 
rate greater than 10 percent in at least one of the analysis years 
(i.e., 2016, 2017, or 2018).
---------------------------------------------------------------------------

     Other Factors of U.S. National Interest. The nonimmigrant 
is subject to other factors determined to be in the U.S. national 
interest, which may include but not be limited to circumstances where 
there may be national security concerns or risks of fraud and abuse. 
These factors may be incorporated into an FRN to limit a student's 
period of stay to a 2-year maximum;
     E-Verify Enrollment. The nonimmigrant's program sponsor is 
either not enrolled in E-Verify or, if enrolled, is not a participant 
in good standing in E-Verify as determined by USCIS.
    In this analysis, DHS does not present the number of individuals 
meeting each limitation criterion, as some individuals may meet 
multiple criteria. The affected population estimates reflect the 
overall effect of all of the NPRM's limitations, rather than the 
marginal effects of each limitation. To estimate EOS requests, DHS 
analyzed nonimmigrant data to identify who would be subject to the 
limitation criteria in the year of analysis. DHS took the following 
steps to identify individuals who would be subject to these criteria in 
the year of analysis:
    1. Program Length. For J nonimmigrants, DHS used the same

[[Page 60566]]

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

    \160\ Participation data from E-Verify Program System of 
Records, retrieved February 5, 2020.
    \161\ DHS used 2018 data because the percentage difference in E-
Verify enrollment for non-governmental programs between years of 
analysis is minimal. Any variation between years is due to the 
number of programs active during each year.
    \162\ The percentages presented represent the percentage of 
exchange visitor programs that are enrolled in E-Verify. One 
employer may sponsor multiple programs. Therefore, this number does 
not reflect the percentage of employers that will be affected by 
this rule.
    \163\ For more information on E-Verify, go to www.e-verify.gov.
---------------------------------------------------------------------------

    DHS calculated the total number of expected EOS requests from these 
criteria for FY 2016, FY 2017, and FY 2018, and used these yearly 
estimates to calculate the annual average number of EOS requests for 
both J-1 and J-2 nonimmigrants.\164\ Table 4 shows the EOS estimates 
for J exchange visitors. DHS estimates that approximately 12,000 J-1 
exchange visitors would request an EOS per year, while approximately 
8,000 J-2 nonimmigrants would be required to apply for an EOS per year.
---------------------------------------------------------------------------

    \164\ These numbers were developed using data from SEVIS. The 
SEVIS database was queried to extract data from FY 2016-2018. DHS 
used R Statistical Software to develop logic allowing DHS to 
identify individuals meeting the limitations specified in the 
proposed rule. DHS provides the SQL code used to query the SEVIS 
database and the R code used to develop the logic for this analysis 
on the proposed rule's docket.

                        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 Nonimmigrants
    I nonimmigrants are bona fide representatives of foreign 
information media (such as press, radio, film, print) seeking to enter 
the United States to engage in such vocation, as well as the spouses 
and children of such aliens. See INA 101(a)(15)(I).
    DHS proposes to give I nonimmigrants an admission period of up to 
240 days, after which an EOS may be available for those who can meet 
EOS requirements. In order to estimate the number of EOS requests that 
would likely be filed by I nonimmigrants, DHS calculated the number of 
individuals in I status in FY 2016, FY 2017, and FY 2018 staying for 
greater than 240 days.\165\ Any individual with a total in-country time 
of greater than 240 days was included in the analysis, as they would be 
required to get additional time from DHS, either by filing an EOS or 
departing the United States and applying for admission with CBP. Table 
5 provides estimates for the number of I nonimmigrants that would apply 
for an EOS per year. Using this methodology, DHS estimates that 
approximately 1,200 I nonimmigrants would request an EOS each year.
---------------------------------------------------------------------------

    \165\ DHS used data from ADIS to derive these estimates. Data 
were presented as the number I nonimmigrants whose duration of 
status fell into a given range of time. For this analysis, DHS 
summed the number of individuals staying for greater than or equal 
to 241 days but less than 366 days and those staying for greater 
than or equal to 366 days in a given year to estimate the number of 
EOS requests that would be filed by I nonimmigrants. During 2016-
2018, approximately 3 percent of I nonimmigrants had an initial 
admission period longer than 240 days.
---------------------------------------------------------------------------

    These estimates do not include I nonimmigrants with an initial 
admission period shorter than 240 days because they departed the United 
States before their total in-country time during the initial admission 
exceeds 240 days. After a very short departure from the United States, 
these same individuals could have returned to the United States, and 
their cumulative total period of stay for both admissions could have 
been longer than 240 days. Therefore, more than 1,200 I nonimmigrants 
may request an EOS per year, as this number does not capture the number 
of I nonimmigrants requesting additional time, only those with a period 
of stay longer than 240 days. DHS seeks public comment on ways to 
improve the estimate of the affected I nonimmigrant population.

[[Page 60567]]



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

             Figure 1--Estimated EOS Requests During the Transition Period for F and J Nonimmigrants
----------------------------------------------------------------------------------------------------------------
                                                                                        EOS request during the
EOS request during the ``Early Transition   EOS request during the ``End Transition     ``Full Implementation
            Period'' 2020-2023                           Period'' 2024                    Period'' 2025-2029
----------------------------------------------------------------------------------------------------------------
Aliens extending their program end date:   Aliens extending their initial date       Aliens requiring an EOS
 EOS requests resulting from extended       certain: EOS requests resulting from      after transition period
 program end dates using the annual         program end dates ending after 2024       ends: The annual, ongoing
 average number of individuals in 2016-     based on the average number of            average number of EOS
 2018 who seek a program end date           individuals between 2016-2018 with        requests expected each
 extension.                                 greater than 4 years left to accomplish   year.
                                            their program.
Aliens subject to a 2-year limitation:     Aliens requiring an EOS outside of
 EOS requests resulting from 2-year         transition limitations: EOS requests
 limited aliens using the annual average    resulting from extending the program
 number of individuals in 2016-2018 who     end date and being subject to a 2-year
 meet the 2-year limitation criteria.       limitation.
 These individuals are added in 2022-
 2023.
----------------------------------------------------------------------------------------------------------------

    In the early transition period, DHS assumes that, from 2020-2021, 
only F and J nonimmigrants extending their program end date beyond the 
program end date noted on their Form I-20 or DS-2019 would be filing an 
EOS because no other period of stay limitation would be triggered 
within the first 2 years of the transition period. Using FY 2016, FY 
2017, and FY 2018 data, DHS estimates that approximately 203,000 EOS 
requests would be filed annually in 2020 and 2021.\166\ DHS expects 
only F and I nonimmigrants would be required to file EOS requests in 
this period as the SEVIS data do not have records of J nonimmigrants 
extending their end date.
---------------------------------------------------------------------------

    \166\ DHS developed these estimates by looking at the data 
cross-sectionally and estimating how many individuals in each year 
would meet the necessary criteria for each stage of the transition 
period. DHS provides the R code used to develop the logic for this 
analysis on the proposed rule's docket. These numbers were developed 
using data from SEVIS. The SEVIS database was queried to extract 
data from FY 2016-2018. DHS used R Statistical Software to develop 
logic allowing DHS to identify individuals meeting the limitations 
specified in the proposed rule. DHS provides the SQL code used to 
query the SEVIS database and the R code used to develop the logic 
for this analysis on the proposed rule's docket.
---------------------------------------------------------------------------

    Beginning in 2022, DHS assumes that individuals subject to a 2-year 
limitation on the period of admission who were admitted after the 
effective date of the rule would begin filing EOS requests. Therefore, 
in 2022 and 2023, there would be two types of EOS requests filed: Those 
from individuals requesting an EOS due to a 2-year period of admission, 
and those from individuals requesting extensions to continue their same 
program or degree. Using FY 2016, FY 2017, and FY 2018 data, DHS 
estimates that approximately 259,000 EOS requests will be filed 
annually in the years 2022-2023.\167\
---------------------------------------------------------------------------

    \167\ These numbers were developed using data from SEVIS. The 
SEVIS database was queried to extract data from FY 2016-2018. DHS 
used R Statistical Software to develop logic allowing DHS to 
identify individuals meeting the limitations specified in the 
proposed rule. DHS provides the SQL code used to query the SEVIS 
database and the R code used to develop the logic for this analysis 
on the proposed rule's docket.
---------------------------------------------------------------------------

    DHS anticipates that there would not be any nonimmigrants currently 
in the country in F, J, or I status at the time that the rule becomes 
effective who would receive a fixed period of admission that extends 
past 2024 because the transition period has a 4-

[[Page 60568]]

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

                                            Table 6--Number of EOS Requests by Nonimmigrant Category and Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Early transition period             End of                  Full implementation period
                                          -------------------------------------------- transition ------------------------------------------------------
          Nonimmigrant category                                                       ------------
                                              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 Rule
Costs
    DHS proposes to admit nonimmigrants seeking entry under the F, J, 
and I nonimmigrant categories for the period required to complete their 
academic program, foreign information media employment, or exchange 
visitor program. For F and J nonimmigrants, the period of admission 
would not exceed 4 years, or 2 years for F and J nonimmigrants meeting 
certain factors. For I nonimmigrants, the period of admission would not 
exceed 240 days. As these nonimmigrants would have a fixed time period 
of admission, this proposal includes provisions that would require 
nonimmigrants to apply for an EOS directly with USCIS or apply for 
admission with CBP and receive an admit until date on their Form I-94 
if seeking to continue their studies, to participate in any type of 
post completion training related to their academic course of study, to 
continue working in their information medium, or to participate in an 
exchange visitor program beyond the initial admission period granted at 
entry.
    DHS assessed the costs and benefits of the proposed rule relative 
to the existing baseline, that is, the current practice of admitting F, 
J, and I nonimmigrants for D/S, as well as monitoring and overseeing 
these categories of nonimmigrants. As summarized in RIA Section VI.A.1 
Table 1, some impacts of the proposed requirements are discussed 
throughout this section qualitatively. In accordance with the 
regulatory analysis guidance articulated in OMB Circular A-4 and 
consistent with DHS's practices in previous rulemakings, this 
regulatory analysis focuses on the likely consequences of the proposed 
rule (i.e., costs and benefits that accrue to affected entities). The 
analysis covers 10 years (2020 through 2029) to ensure it captures 
major costs and benefits that accrue over time. DHS expresses all 
quantifiable impacts in 2018 dollars and uses 7 percent and 3 percent 
discounting following OMB Circular A-4.
DSO and RO Rule Familiarization and Adaptation Costs
    The proposed rule would impact DSOs and ROs from SEVP-certified 
schools and exchange visitor programs that run a SEVP or DOS approved 
program by requiring time for rule familiarization training, 
modification of training materials, and institutional awareness and 
response (during the first year only). I foreign information media 
representatives would not incur similar costs from the proposed rule as 
those incurred by DSOs and ROs because the burden for filing an EOS 
request falls on the I nonimmigrant, who, DHS assumes that in the 
baseline familiarize themselves with the pertinent visa requirements at 
the time the visa is needed, not at the point in time that Federal 
regulations change. DHS expects this behavior would not change as a 
result of the rule and, as a result, there would be no incremental 
costs associated with rule familiarization and adaptation for I foreign 
information media representatives.
    Based on best professional judgment, SEVP estimates that DSOs and 
ROs would require 8 hours to complete rule familiarization training, 16 
hours to create and modify training materials, and 16 hours to adapt to 
the proposed rule through system wide briefings and systemic changes. 
DHS welcomes public comments on these estimates. To estimate these 
costs, DHS multiplied the total time requirement (40 hours) by the 
loaded wage rate for DSOs and ROs ($28.93 wage rate * a 1.46 loaded 
wage rate factor \168\) and by the number of DSOs and ROs (55,207; 
49,089 DSOs + 6,118 ROs \169\). DHS estimates that DSO

[[Page 60569]]

and RO rule familiarization and adaptation would cost $93.3 million 
during the first year once the rule takes effect ($28.93 x 1.46 loaded 
wage rate factor x 40 hours x 55,207 DSOs and ROs).
---------------------------------------------------------------------------

    \168\ Based on the Bureau of Labor Statistics (BLS) average 
hourly wage for SOC 21-1012 (Educational, Guidance, School, and 
Vocational Counselors), available at: https://www.bls.gov/oes/2018/may/oes211012.htm. The benefits-to-wage multiplier is calculated by 
the BLS as (Total Employee Compensation per hour)/(Wages and 
Salaries per hour) = $36.32/$24.91 = 1.458 (1.46 rounded) based on 
the average national wage for all occupations (wages represent 68.6 
percent of total compensation). See Economic News Release, Employer 
Cost for Employee Compensation (March 2019), U.S. Dept. of Labor, 
BLS, Table 1. Employer costs per hour worked for employee 
compensation and costs as a percent of total compensation: Civilian 
workers, by major occupational and industry group (March 19, 2019), 
available at: https://www.bls.gov/news.release/archives/ecec_03192019.pdf.
    \169\ The number of DSOs and ROs were pulled from SEVIS and are 
current as of September 2019. More information on SEVIS can be found 
at https://www.ice.gov/sevis/overview.
---------------------------------------------------------------------------

Extension of Stay Filing Costs

    Under the proposed rule, nonimmigrants who would like to extend 
their stay beyond their fixed period of admission would need to apply 
for additional time directly with DHS. Under the proposed framework, 
nonimmigrants could choose to file an EOS using the appropriate form 
from USCIS or apply for admission with CBP at a POE. DHS assumes 
nonimmigrants with existing international travel plans would prefer to 
request extensions with CBP at a POE rather than incurring the costs of 
filing an EOS. Because DHS is unable to estimate how many nonimmigrants 
would prefer to extend with CBP, DHS' best assessment of the cost of 
the proposed rule to the affected population is based on the assumption 
that each extension will require a Form I-539 filing. Actual costs to 
the affected population could be lower for those nonimmigrants able to 
extend while traveling through a POE.\170\
---------------------------------------------------------------------------

    \170\ DHS is unable to estimate how many individuals would seek 
an extension to their period of stay while traveling through a POE 
instead of filing the I-539 or I-539A form. The analysis thus 
assumes that all F, J, and I nonimmigrants requiring an EOS would 
file using the I-539 or I-539A form. If DHS made the opposite 
assumption--that all F, J, and I nonimmigrants requiring an EOS 
would extend while traveling through a POE--the cost estimates would 
change in the following ways. First, F, J, and I nonimmigrants would 
not pay the I-539 or I-539A filing and biometric processing costs. 
However, the process of applying for readmission at a POE would 
require 8 minutes of time for each F, J, or I nonimmigrant requiring 
an EOS. The time estimate of 8 minutes is based on the time required 
for completing a paper I-94 form (Supporting Statement A for Form I-
94, ``Arrival and Departure Record'', OMB Control Number 1651-0111). 
The cost to F, J, and I nonimmigrants for applying for readmission 
at a POE translates to a total undiscounted cost of $5.0 million 
over the 2020-2029 analysis period using the number of EOS requests 
presented in Table 6 and the nonimmigrant wage rates described in 
Table 7. F, J, and I nonimmigrants would also incur costs to travel 
to a POE. Second, CBP officers would also spend 8 minutes of time 
per F, J, or I nonimmigrant applying for readmission at a POE. Using 
a loaded wage rate of $87.94 (salary and benefit information was 
provided by CBP Office of Finance to ICE on April 9, 2020) and the 
number of EOS requests presented in Table 6, the cost to CBP 
officers for completing readmission at a POE for F, J, and I 
nonimmigrants requiring an EOS translates to $32.8 million over the 
2020-2029 analysis period. DHS anticipates that the CBP labor burden 
required to processes readmissions at a POE can be incorporated in 
existing procedures without requiring additional staff.
---------------------------------------------------------------------------

    During the transition, F and J nonimmigrants who are properly 
maintaining their status, are present in the United States when the 
rule takes effect, and were admitted for D/S would be authorized to 
remain in the United States for a period of time up to the program end 
date noted on their Form I-20 or DS-2019, plus 30 days, not to exceed a 
period of 4 years. I nonimmigrants who are properly maintaining their 
status and are present in the United States when the rule takes effect 
would have their status, and employment authorization incident to such 
status, automatically extended for a period necessary to complete their 
activity, not to exceed 240 days after the rule takes effect. Any F 
academic students, J exchange visitors, and I representatives of 
foreign information media who are present when the rule takes effect 
would need to apply for an EOS if they require additional time required 
beyond the maximum specified transition time period.
    EOS applicants would need to file Form I-539 (F-1, J-1, and I 
nonimmigrants) or Form I-539A (F-2, J-2 nonimmigrants, and I 
dependents), depending on the nonimmigrant category, in order to extend 
their period of stay. DHS assumes that all F-2 nonimmigrants, J-2 
nonimmigrants, and I dependents would complete the I-539A instead of 
completing a separate Form I-539 because the I-539A is less burdensome 
to complete and does not require a separate application fee.\171\ 
However, I nonimmigrant data contained the representatives of foreign 
information media and their dependents, without differentiating between 
the two. As a result, this analysis overestimates EOS filing costs for 
I nonimmigrants by assigning the primary I nonimmigrant costs to both 
the representatives of foreign information media and their dependents.
---------------------------------------------------------------------------

    \171\ Form I-539 instructions ask applicants to list all family 
members in Form I-539A. Therefore, it is reasonable to assume that 
the co-applicants (F-2, J-2 nonimmigrants and I dependents) will use 
Form I-539A.
---------------------------------------------------------------------------

    The most recently approved Paperwork Reduction Act (PRA) 
Information Collection Package Supporting Statement for Form I-539 at 
the time of this analysis, which provides the average applicant burden 
estimates for completing and submitting the form, states that F-1, J-1, 
and I nonimmigrants require 2.0 hours to complete a paper version of 
the Form I-539 (70 percent of applicants) or 1.08 hours to complete an 
electronic version (30 percent of applicants), and F-2 and J-2 
nonimmigrants require 0.5 hours to complete the I-539A form.\172\ 
USCIS's Inadmissibility on Public Charge Grounds Rule, published August 
14, 2019, increased burden for the paper version of the Form I-539 to 
2.38 hours due to the collection of additional information related to 
public benefits.\173\ 84 FR 157 (Aug. 14, 2019). In addition to the 
labor burden of completing the Form I-539, DHS estimates in the 
Supporting Statement for Form I-539 that 35 percent of F-1, J-1, and I 
applicants may incur additional expenses for third party assistance to 
prepare responses, legal services, translators, and document search and 
generation. For those applicants who seek additional assistance, the 
average cost for these activities is approximately $490. DHS assumes 
that F-2 and J-2 applicants would not incur additional expenses for 
outside assistance and would instead work with the F-1 and J-1 
applicants to complete the I-539A form.
---------------------------------------------------------------------------

    \172\ Time estimates are taken from the Supporting Statement A 
for Form I-539, ``Application to Extend/Change Nonimmigrant 
Status'', found at: https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201907-1615-012.
    \173\ Instructions for Application to Extend/Change Nonimmigrant 
Status, available at https://www.uscis.gov/system/files_force/files/form/i-539instr-pc.pdf (last visited Apr. 14, 2020).
---------------------------------------------------------------------------

    In addition to completing the Form I-539/I-539A, all F, J, and I 
applicants would be required submit biometrics. The submission of 
biometrics requires travel to an application support center (ASC) for 
the biometric services appointment,\174\ with an average round-trip 
travel time of 2.5 hours.\175\ The Supporting Statement for Form I-539 
estimates that each would spend 1 hour and 10 minutes (1.17 hours) at 
an ASC to submit biometrics. Summing the ASC time and travel time 
yields 3.67 hours for each applicant to submit biometrics.
---------------------------------------------------------------------------

    \174\ DHS expects the majority of biometrics appointments to 
occur in the United States at an ASC. However, in certain instances 
nonimmigrants may submit biometrics at an overseas USCIS office or 
DOS Embassy or consulate. However, because DHS does not currently 
have data tracking the specific number of biometric appointments 
that occur overseas, it uses the cost and travel time estimates for 
submitting biometrics at an ASC as an approximate estimate for all 
populations submitting biometrics in support of an EOS request.
    \175\ See DHS Final Rule, Provisional Unlawful Presence Waivers 
of Inadmissibility for Certain Immediate Relatives, 78 FR 535 (Jan. 
3, 2013).
---------------------------------------------------------------------------

    F, J, and I nonimmigrants would pay fees to USCIS to file the Form 
I-539 and complete biometric processing, as described in the Supporting 
Statement for Form I-539. F-1, J-1, and I nonimmigrants would pay a 
$370 fee when submitting the Form I-539 (F-2 and J-2 nonimmigrants 
would not be required to pay a fee when submitting

[[Page 60570]]

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

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

    Table 7 provides the unit cost and references for the costs for 
completing and submitting the Form I-539/I-539A and biometrics for each 
nonimmigrant 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            2.38            0.50            2.38            0.50            2.38
 paper applications (in hours)
 \1\............................
[b] Average applicant burden for            1.08             0.5            1.08             0.5            1.08
 electronic applications (in
 hours) \2\.....................
[c] Average biometric processing            3.67            3.67            3.67            3.67            3.67
 burden (in hours) \3\..........
[d] Total labor burden for paper            6.05            4.17            6.05            4.17            6.05
 applications (in hours) [a] +
 [c]............................
[e] Total labor burden for                  4.75            4.17            4.75            4.17            4.75
 electronic applications (in
 hours) [b] + [c]...............
[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                   $29             N/A             $29             N/A             $29
 submit biometrics \5\..........
[j] Burden costs for paper                  $557            $135            $705            $237            $707
 applications not requiring
 outside help \6\ ([d] * [f]) +
 [g] + [h] + [i]................
[k] Burden costs for electronic             $541            $135            $657            $237            $659
 applications not requiring
 outside help \7\ ([e] * [f]) +
 [g] + [h] + [i]................
[l] Additional expenses for                 $490             N/A            $490             N/A            $490
 outside help with form \8\.....
[m] Burden costs for paper                $1,047             N/A          $1,195             N/A          $1,197
 applications requiring outside
 help \9\ [j] + [l].............
[n] Burden costs for electronic           $1,031             N/A          $1,147             N/A          $1,149
 applications requiring outside
 help \10\ [k] + [l]............
----------------------------------------------------------------------------------------------------------------
\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 requiring 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 outside 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% requiring 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 x 1.46 benefits-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 minimum 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 x 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 Communication Workers, All Other'' (27-3099)), found at https://www.bls.gov/oes/2018/may/oes273099.htm, and accounting for benefits. $36.81 = $25.21 x 1.46 benefits-to-wage multiplier.


[[Page 60571]]

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

                                               Table 8--EOS Filing Costs by Nonimmigrant Category and Year
                                                             [Millions 2018$, undiscounted]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Early transition period             End of                  Full implementation period
                                          -------------------------------------------- transition ------------------------------------------------------
            Number of EOS/cost                                                        ------------
                                              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) x (unit cost for paper applicants not requiring outside help) x (0.455).
\2\ (EOS request estimate) x (unit cost for electronic applicants not requiring outside help) x (0.195).
\3\ (EOS request estimate) x (unit cost for paper applicants requiring outside help) x (0.245).
\4\ (EOS request estimate) x (unit cost for electronic applicants requiring outside help) x (0.105).
\5\ (EOS request estimate) x (unit cost for paper applicants not requiring outside help) x (0.7).
\6\ (EOS request estimate) x (unit cost for electronic applicants requiring outside help) x (0.3).

    The total estimated cost for EOS filing in 2018 dollars would be 
$1.8 billion undiscounted,\179\ or $1.6 billion and $1.3 billion at 
discount rates of 3 and 7 percent, respectively. The annualized cost of 
extension of stay filing over the 10-year period would be $187.4 
million

[[Page 60572]]

and $192.2 million at discount rates of 3 and 7 percent, respectively.
---------------------------------------------------------------------------

    \179\ The undiscounted total differs slightly from the sum of 
the years provided in Table 8 because of rounding in the table 
values.
---------------------------------------------------------------------------

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

    The total cost estimate for DSO/RO program extension requests 
processing and SEVIS updates would be $308.7 million undiscounted,\180\ 
or $268.7 million and $226.9 million at discount rates of 3 and 7 
percent, respectively. The annualized cost of EOS filings over the 10-
year period would be $31.5 million and $32.3 million at discount rates 
of 3 and 7 percent, respectively.
---------------------------------------------------------------------------

    \180\ The undiscounted total differs slightly from the sum of 
the years provided in Table 9 because of rounding in the table 
values.
---------------------------------------------------------------------------

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

[[Page 60573]]

analysis considers these potential impacts for each category of 
nonimmigrant affected by the proposed rule.
F and J Nonimmigrants Affiliated With SEVP-Certified Schools
    The proposed rule may adversely affect U.S. competitiveness in the 
international market for nonimmigrant student enrollment and exchange 
visitor participation. Specifically, the proposed changes could 
decrease nonimmigrant student enrollments in the United States with 
corresponding increased enrollments in other English-speaking 
countries, notably in Canada, Australia, and the United Kingdom. 
Student visas and resulting nonimmigrant status in other English-
speaking countries are typically valid for the duration of the 
student's course enrollment, so students are not generally required to 
file an EOS application. For example, Australia's most common student 
visa (Subclass 500) provides for an admission for a length of stay that 
corresponds to the student's enrollment, which may be more than 4 
years.\181\ Similarly, a Canadian study permit is typically valid for 
the length of the study program, plus an extra 90 days to let the 
student prepare to leave Canada or apply to extend their stay.\182\ The 
admission period for a nonimmigrant with a Tier 4 (General) student 
visa in the United Kingdom depends on the length of the course as 
stated in the student's Confirmation of Acceptance for Studies. 
International students in the UK are granted a certain number of 
additional months at the end of the course to prepare for departure, 
apply to extend their stay or change their status, depending on the 
original course length.\183\ In each case, some nonimmigrant students 
may consider other countries' visa programs to be less restrictive 
relative to the proposed rule, as they would not be required to file an 
application to extend their stay and incur this additional expense. 
Although it affects only those F-1 nonimmigrants who are applying for 
an extension of stay for additional time to complete their program who 
cannot establish that the reason for requesting an extension is due to 
compelling academic reasons, a documented illness or medical condition, 
or circumstances beyond the student's control, or have otherwise failed 
to maintain status, the possibility of an extension being denied and 
the student thus not being able to complete the degree in the U.S. 
might affect the student's choice of country in which to study. As a 
result, nonimmigrant students and exchange visitors may be incentivized 
to consider other English-speaking countries for their studies.
---------------------------------------------------------------------------

    \181\ Australian Government, Department of Home Affairs: 
Immigration and Citizenship, Subclass 500 (Student Visa). Retrieved 
from: https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/student-500#Overview https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/student-500#Overview.
    \182\ Government of Canada, Immigration and Citizenship, Study 
Permit: About the Process. Retrieved from: https://www.canada.ca/en/immigration-refugees-citizenship/services/study-canada/study-permit.html https://www.canada.ca/en/immigration-refugees-citizenship/services/study-canada/study-permit.html.
    \183\ Gov.uk, General Student Visa (Tier 4). Retrieved from: 
https://www.gov.uk/tier-4-general-visa.
---------------------------------------------------------------------------

    Nonimmigrant student enrollment and exchange visitor participation 
contributes to the U.S. economy. The Institute of International 
Education estimates that during the 2018 academic year, international 
students alone had an economic impact of $44.7 billion from tuition and 
fees, food, clothing, travel, textbooks, and other spending.\184\ If 
these students and exchange visitors choose another country over the 
United States because of this proposed rule, then the reduced demand 
could result in a decrease in enrollment, therefore, impacting school 
programs in terms of forgone tuition and other fees, jobs in 
communities surrounding schools, and the U.S. economy. DHS conducted a 
literature search to find research estimating impacts associated with 
actions like the proposed requirements and found related research like 
the Institute of International Education's Open Doors[supreg], as cited 
above, and NAFSA's Economic Value Tool \185\ that provide annual 
estimates of the economic contribution of international students to the 
U.S. economy. While DHS acknowledges that the rule may decrease 
nonimmigrant student enrollments, there are many factors that make the 
United States attractive to nonimmigrant students and exchange visitors 
beyond the allowable admission period. For example, Daily, Farewell, 
and Guarav (2010) found that international students pursuing a business 
degree in the United States rate opportunities for post-graduation 
employment, availability of financial aid, and reputation of the school 
as the most important factors in selecting a university.\186\ These 
factors may outweigh the perceived impacts from the proposed admission 
for a fixed period.
---------------------------------------------------------------------------

    \184\ Institute of International Education, 2019 Open 
Doors[supreg] Report on International Educational Exchange, 
Retrieved from: https://www.iie.org/Why-IIE/Announcements/2019/11/Number-of-International-Students-in-the-United-States-Hits-All-Time-High.
    \185\ NAFSA: Association of International Educators, Economic 
Value Statistics, Retrieved from: https://www.nafsa.org/policy-and-advocacy/policy-resources/nafsa-international-student-economic-value-tool-v2#main-content (last visited Apr. 14, 2020).
    \186\ Daily, C., Farewell, S., & Guarav, K., (2010). Factors 
Influencing the University Selection of International Students, 
Academy of Educational Leadership Journal, 14(3), 59-75, Retrieved 
from: https://www.abacademies.org/articles/aeljvol14no32010.pdf 
(last visited Apr. 14, 2020).
---------------------------------------------------------------------------

Other J Exchange Visitors
    For other J exchange visitors, such as government visitors and 
alien physicians, DHS does not believe there would be a significant 
impact in participation. Alternatives to U.S.-based exchange visitor 
programs (outside of academia) may be more difficult to find in other 
countries, providing less of an incentive for nonimmigrants to choose 
an alternative. S.
I Foreign Information Media Representatives
    Similar to J exchange visitors not affiliated with SEVP-certified 
schools, DHS does not believe the proposed rule would have a 
significant impact on I nonimmigrants. Using ADIS data from 2016-2018, 
DHS found that on average, 97 percent of I nonimmigrants have a period 
of stay shorter than 240 days, and there are fewer proposed changes to 
the I category relative to other nonimmigrants, such as F 
nonimmigrants. Therefore, DHS does not expect a reduction in admissions 
of I nonimmigrants.
    DHS appreciates the importance of nonimmigrant student enrollment 
and exchange visitor participation to the U.S. culture and economy, but 
acknowledges the potential for the proposed rule to affect future 
nonimmigrant student enrollment and exchange visitor participation and 
associated revenue. DHS requests comment on this potential impact, 
including literature, data, and research estimating nonimmigrant 
student enrollment and exchange visitor participation impacts and the 
potential effect of the requirements on schools or sponsors and the 
larger economy.
Implementation and Operations Costs Incurred by CBP
    DHS acknowledges there would be implementation and operational 
costs to the U.S. Government associated with assessing aliens at the 
POE for purposes of authorizing an admission period of 2 or 4 years. 
CBP officers would need training on new systems and procedures for 
conducting inspections at the POE. Once the rule is effective, CBP 
officers would need readily accessible information on the applicant to 
assist in

[[Page 60574]]

(1) assessing the appropriate length of stay for admission; and (2) 
making an admissibility assessment in cases of re-admission. DHS may 
require modification to the Primary Processing System to deliver this 
information to CBP officers. DHS continues to explore the necessary 
upgrades to systems and procedures that would allow CBP officers to 
perform their duties in accordance with this proposed rule. Therefore, 
this analysis does not quantify the costs associated with training CBP 
officers or the operational costs associated with new systems and 
procedures.
E-Verify
    DHS is proposing a 2-year limitation on F nonimmigrants accepted to 
and attending schools not enrolled in E-Verify, or if enrolled, not a 
participant in good standing in E-Verify as determined by USCIS. DHS 
also is proposing a 2-year limitation on J nonimmigrants participating 
in an exchange visitor program whose sponsor is not enrolled in E-
Verify, or if enrolled, not a participant in good standing in E-Verify 
as determined by USCIS. The proposed rule would require these 
nonimmigrants to file an EOS request every 2 years to extend their 
stay.
    The EOS estimates and quantitative cost impacts incorporate E-
Verify enrollment for J exchange visitor program sponsors. This was 
done by matching the employer identification number for J exchange 
visitor program sponsors with the employer identification number for 
employers enrolled in E-Verify. However, DHS was not able to control 
for E-Verify enrollment for schools attended by F nonimmigrants because 
the student data did not contain the employer identification number for 
schools attended by F nonimmigrants. DHS attempted to manually identify 
schools enrolled in E-Verify using fields such as school name and 
employer name, but was unsuccessful. For this reason, DHS did not 
quantify the impact of the E-Verify provision on F nonimmigrants in 
this analysis.\187\
---------------------------------------------------------------------------

    \187\ See the section titled, ``Estimating EOS Requests for F 
Nonimmigrants'' for a discussion regarding the E-Verify data 
limitations.
---------------------------------------------------------------------------

Batch Processing
    Batch processing is a data-based transaction between a school and 
the SEVIS information database maintained by DHS. Batch processing is 
intended to help DSOs and ROs update and report their nonimmigrant 
student and exchange visitor information to SEVIS in a timely manner by 
automating the exchange of data. Rather than updating individual 
nonimmigrant student and exchange visitor information manually through 
SEVIS, batch processing allows schools and program sponsors to pool 
together and automatically process updates at the same time. The 
intended benefit of using batch processing is to streamline the SEVIS 
updating process. Instead of updating individual record information 
one-by-one through the SEVIS Portal, DSOs can update multiple records 
at once, automatically.
    DSOs are required to submit changes or updates to the nonimmigrant 
student and exchange visitor information to the SEVIS database system. 
When using batch processing to submit information to SEVIS, DSOs are 
required to comply with the proper documentation by submitting their 
updates as Extensible Markup Language (``XML'') documents. Using the 
XML format allows the SEVIS batch system to recognize the new or 
updated student data automatically. The changes are stored in the SEVIS 
batch system and an updated report is returned to the school for record 
keeping and verification. Schools can develop their own software or use 
third-party software suppliers to organize, update, and store their 
student data according to the SEVIS XML requirements.\188\
---------------------------------------------------------------------------

    \188\ Immigration and Customs Enforcement SEVIS document, 
Application Program Interface Document for the Student and Exchange 
Visitor Information System Batch Interface Release 6.35, p. 1-5 
(July 31, 2017), Retrieved from: https://www.ice.gov/doclib/sevis/pdf/batch_api_6.35_073117_main.pdf.
---------------------------------------------------------------------------

    If finalized, the rule could lead to system upgrades by schools and 
program sponsors that currently use batch processing to interface with 
SEVIS. DHS acknowledges that there are many factors that affect the 
magnitude of system upgrade costs incurred by schools. For example, 
there may be one-time software development costs to implement an 
updated system capable of storing and converting a higher volume of 
nonimmigrant student and exchange visitor records. There also may be 
differences in the burden of the proposed rule according to the size of 
the nonimmigrant student and exchange visitor population at the school, 
the willingness of the school to maintain up-to-date system-wide 
software and hardware, and other factors. DHS requests comment on this 
potential impact, including the potential effect of the requirements on 
schools or sponsors and any data associated with the impact, such as 
the typical expenses for third-party software licenses or the potential 
impact of system-wide hardware or software updates.
    Preparing the SEVIS batch system to accept novel categories of 
information from schools and program sponsors could require new 
database management procedures. DHS acknowledges that accepting the 
updated XML files sent from DSOs has the potential to impact the 
functionality of its internal system. The SEVIS batch system may 
require system updates to maintain proper operations and system 
execution during the exchange between the user-system (the DSO's 
system) and the SEVIS batch system. Because of the uncertainty of the 
scope and scale of the system upgrades needed as a result of this 
proposed rule, DHS has not monetized the cost of these potential, 
future information technology investments.
English Language Training
    DHS is proposing a limitation of an aggregate 24-month period of 
stay, including breaks and an annual vacation, for language training 
students. Unlike degree programs, there are no nationally-recognized, 
standard completion requirements for language training programs, 
allowing students to exploit the current system and stay for an 
excessive period of time. The proposed 24-month period of stay would 
allow students a reasonable period of time to attain proficiency in the 
English language while mitigating the Department's concerns of fraud 
with the program. DHS estimates that an average of 136,000 students 
participate in English language training programs annually.\189\ This 
analysis does not estimate a cost for this proposed provision as 
students enrolled in English language training would not be able to 
extend their fixed period of stay beyond two years and would therefore 
not incur the costs associated with applying for an extension to their 
period of admission. However, it is possible language training programs 
would experience reduced enrollment due to the proposed rule. 
Additionally, some schools may choose to change their curriculum to be 
covered in a 2-year time period, representing an additional burden on 
language training program providers. However, DHS expects this to 
affect relatively few programs. For all years of analysis, the majority 
of English

[[Page 60575]]

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

    \189\ This estimate was developed using data from SEVIS. The 
SEVIS database was queried to extract data from FY 2016-2018. DHS 
used R Statistical Software to develop logic allowing DHS to 
identify individuals enrolled in language training programs. DHS 
provides the SQL code used to query the SEVIS database and the R 
code used to develop the logic for this analysis on the proposed 
rule's docket.

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

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

                                      Table 12--Costs of the Proposed Rule
                                                [2018$ millions]
----------------------------------------------------------------------------------------------------------------
                                                   DSO/RO rule                      DSO/RO EOS
                  Fiscal year                    familiarization    EOS filing      processing      Total costs
----------------------------------------------------------------------------------------------------------------
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

[[Page 60576]]

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

[[Page 60577]]

meeting certain conditions. While such an option would provide the 
Department with more frequent direct check in points with these 
nonimmigrants than provided by a 4-year maximum period of admission, or 
2 years for nonimmigrants meeting certain conditions, DHS was concerned 
it would be unduly burdensome on many F and J nonimmigrants. Under the 
alternative, DHS estimates that, on average, 494,000 nonimmigrants 
would file an EOS each year. By comparison, DHS estimates that under 
the proposed rule, on average, 301,000 nonimmigrants would file an EOS 
each year. By selecting the 2- and 4- year option in the proposed rule 
over the 1- and 3-year alternative, DHS expects to receive 193,000 
fewer EOS requests on average each year. DHS believes that a 4-year 
period best aligns with the normal progress for most programs, and a 3-
year maximum period of stay would require almost every nonimmigrant 
enrolled in a 4-year program to apply for an EOS. A 3-year maximum also 
would result in greater administrative burdens on USCIS and CBP 
compared to the proposed 4-year maximum period of admission. USCIS 
would have to adjudicate extension of stay applications with more 
frequency if a 3-year maximum period of stay is chosen over a 4-year 
period. Similarly, CBP would have to process applications for admission 
at POEs more frequently under the 3-year maximum period of stay 
alternative. Therefore, DHS believes an admission for the program end 
date, not to exceed 4 years (except for limited exceptions that would 
limit admissions to 2 years) is the best option and welcomes comments 
on this proposal.
    DHS calculated the costs for this alternative. DSO and RO rule 
familiarization and adaptation costs would remain the same under this 
alternative ($93.3 million during the first year after the rule takes 
effect). To calculate EOS filing costs, DHS multiplied the expected 
number of extension of stay requests under the 3-year and 1-year fixed 
admission period alternative for F, I, and J nonimmigrants (Table 13) 
by the appropriate applicant 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
                                          --------------------------------- transition -----------------------------------------------------------------
          Nonimmigrant category                                            ------------
                                              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 costs under the 3-year 
and 1-year fixed admission period alternative by nonimmigrant category 
and year, along with a breakdown of costs based on filing type (paper 
or electronic) and the use or nonuse of outside help to complete the 
form. EOS filing costs are lowest during the early transition period 
(2020-2022) and highest at the end of the transition period (2023) 
because of the variation in the estimated number of EOS requests (Table 
13).

                                   Table 14--EOS Filing Costs under Alternative #1, by Nonimmigrant Category and Year
                                                             [Millions 2018$, undiscounted]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Early transition period        End of                       Full implementation period
                                          --------------------------------- transition -----------------------------------------------------------------
            Number of EOS/cost                                             ------------
                                              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
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 60578]]

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

    The total costs for EOS request filing under the 3-year and 1-year 
fixed period of admission alternative would be $3.1 billion 
undiscounted,\190\ or $2.7 billion and $2.2 billion at discount rates 
of 3 and 7 percent, respectively. The annualized cost of EOS request 
filing over the 10-year period would be $312.8 million and $320.0 
million at discount rates of 3 and 7 percent, respectively.
---------------------------------------------------------------------------

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

    To estimate costs for DSOs and ROs to process program extension 
requests and update SEVIS under the 3-year and 1-year fixed period of 
admission alternative, DHS multiplied the expected number of F-1 and J-
1 EOS requests under the 3-year and 1-year fixed admission period 
alternative (Table 13) by the expected DSO and RO time requirement per 
EOS request (3 hours) and the DSO and RO loaded wage rate ($28.93 x 
1.46 loaded wage rate factor).
    Table 15 presents undiscounted DSO/RO costs to process program 
extension requests and update SEVIS throughout the 2020-2029 study 
period under the 3-year and 1-year fixed admission period alternative. 
Similar to EOS filing costs, DSO/RO costs to process program extension 
requests and update SEVIS are lowest during the early transition period 
(2020-2022) and highest at the end of the transition period (2023) 
because of the variation in the estimated number of EOS requests (Table 
13).

         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) x (3 hours) x (DSO/RO wage rate of $28.93) x (loaded wage rate factor of 1.46).

    The total cost estimate for DSOs and ROs to process program 
extension requests and update SEVIS under the 3-year and 1-year fixed 
period of admission alternative would be $508.2 million 
undiscounted,\191\ or $441.7 million and $372.1 million at discount 
rates of 3 and 7 percent, respectively. The annualized cost of DSOs and 
ROs to update SEVIS over the 10-year period would be $51.8 million and 
$53.0 million at discount rates of 3 and 7 percent, respectively.
---------------------------------------------------------------------------

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

    Total monetized costs of the 3-year and 1-year fixed period of 
admission alternative include DSO and RO rule familiarization and 
adaptation costs, EOS filing costs, and DSO/RO costs for processing 
program extension requests and updating SEVIS. The 10-year discounted 
total costs of the 3-year and 1-year fixed period of admission 
alternative would be $3.2 billion with a 3 percent discount rate and 
$2.7 billion

[[Page 60579]]

with a 7 percent discount rate. The annualized total costs of the 3-
year and 1-year fixed period of admission alternative would range from 
$375.5 million to $386.2 million (with 3 and 7 percent discount rates, 
respectively). The qualitative benefits of the 3-year and 1-year fixed 
period of admission alternative are same as the benefits of the 4-year 
and 2-year fixed period of admission alternative described in Section 
V.A.4.
Other Alternatives
    DHS also considered a standard 1-year fixed admission period for 
all F and J nonimmigrants. This option would treat all F and J 
nonimmigrants equally and would likely allow for easier implementation 
by USCIS and CBP by reducing the complexity of implementation and 
enforcement. Nevertheless, it could result in significant costs to 
nonimmigrants and the Department. There are more than 1 million F 
students who are enrolled in programs of study that last longer than 1 
year. With a 1-year admission period, DHS expects that all of them 
would be required to apply for additional time. This would be a 
significant cost to students and exchange visitors, especially those 
who comply with the terms and conditions of their admission and those 
attending undergraduate programs that typically require 4 years to 
complete. Further, such a restrictive admission period could have 
unintended consequences. For example, if USCIS's EOS processing time is 
significantly lengthened due to a 1-year admission period, cases 
presenting national security or fraud concerns would not necessarily be 
prioritized, thereby allowing a mala fide student or exchange visitor 
to remain in the United States until USCIS adjudicated his or her 
petition.
    DHS also considered whether the Department could utilize data from 
SEVIS to identify potentially problematic F and J nonimmigrants and 
require only this targeted subset of F and J nonimmigrants to complete 
an EOS. SEVIS information is used when aliens apply for a visa and 
admission to the U.S. as an F or J nonimmigrant, as well as to track 
and monitor their status. While this information is likely to be 
helpful in identifying aliens who should be subjected to further 
review, in some cases the information may not be sufficient for 
determining whether these nonimmigrants are engaging in fraudulent 
behavior or otherwise have fallen out of status. The data received when 
applying for an EOS provides additional information not contained in 
SEVIS that helps the Department effectively monitor and oversee F and J 
nonimmigrants. Further, an EOS provides a direct interaction with an 
immigration officer. As a potential remedy, the Department considered 
whether the SEVIS data could be used to classify a subset of 
nonimmigrants as higher risk of being a national security threat or 
committing fraud. The identified subset would then be required to 
complete an EOS as described in the proposal. Depending on how the 
Department targeted higher risk aliens, a smaller number of EOS's would 
need to be completed as compared to the current proposal, thus lowering 
the burden on nonimmigrants, program sponsors, and the Department. The 
Department rejected this alternative in favor of moving all F and J 
nonimmigrants to a fixed period admission because SEVIS does not 
readily lend itself to this purpose, as it is used to gather 
information regarding technical compliance, and the data cannot replace 
the information that can be developed in the course of an adjudication, 
in which USCIS has the opportunity to ask questions via a request for 
evidence and, if necessary, conduct an interview. The Department also 
rejected this alternative due to the operational burden and challenges 
that would exist if some F and J nonimmigrants were admitted for D/S, 
but others for a fixed period of admission. In addition, by requiring 
all of the F and J nonimmigrants to be admitted for a fixed period, 
this allows for the opportunity for improved detection of fraud or 
abuse, as the Department has observed that abuse is not limited to one 
particular type of school or program. By fixing a date certain period 
of admission, all of these nonimmigrants are on notice as to the date 
their period of stay expires, and the Department will be in a position 
to provide greater oversight to help deter F and J nonimmigrants from 
engaging in fraud and abuse, including staying beyond that fixed date. 
All those who overstay would begin to accrue unlawful presence, 
generally the day after their period of stay expires, when admitted for 
a fixed period of admission. Lastly, the Department believes that a 
fixed period of admission for these populations may deter fraud, allow 
for earlier detection of national security concerns, and help reduce 
overstays which outweighs reducing the number of EOS requests that may 
be required.
Comparison Table of Alternatives
    Table 16 compares the quantitative costs and qualitative benefits 
of the various alternatives. The ``no action'' alternative has zero 
costs but does not address how the D/S framework challenges the 
Department's ability to effectively implement the statutory 
inadmissibility grounds of unlawful presence, undermines the integrity 
of these programs, and presents a risk to national security. The 
alternative with a 3-year maximum period of admission (or 1-year for 
nonimmigrants meeting certain conditions) would provide the Department 
with more frequent direct check in points on the nonimmigrants than a 
4-year maximum period of admission, but DHS determined that the expense 
and workload implications of this option would be too burdensome on all 
stakeholders. DHS thus selected the proposed rule, which would impose 
lower costs while providing the Department with an effective mechanism 
to exercise the oversight necessary to vigorously enforce our nation's 
immigration laws, protect the integrity of these categories, and 
promptly detect national security 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 admission).......           229.9         1,961.0  Evaluations at pre-determined
                                                                              intervals provide oversight
                                                                              necessary to enforce immigration
                                                                              laws; protect the integrity of F,
                                                                              J, and I nonimmigrant categories;
                                                                              and promptly detect national
                                                                              security concerns.

[[Page 60580]]

 
Alternative 1 (3-year max admission).......           375.5         3,203.5  More frequent evaluations of
                                                                              nonimmigrants (at least one check-
                                                                              in for every F, J, and I
                                                                              nonimmigrant).
----------------------------------------------------------------------------------------------------------------
                                               7-Percent Discount
----------------------------------------------------------------------------------------------------------------
No action..................................           $0.00           $0.00  N/A.
Proposed Rule (4-year max admission).......           237.8         1,669.8  Evaluations at pre-determined
                                                                              intervals provide oversight
                                                                              necessary to enforce immigration
                                                                              laws; protect the integrity of F,
                                                                              J, and I nonimmigrant categories;
                                                                              and promptly detect national
                                                                              security concerns.
Alternative 1 (3-year max admission).......           386.2         2,712.7  More frequent evaluations of
                                                                              nonimmigrants (at least one check-
                                                                              in for every F, J, and I
                                                                              nonimmigrant).
----------------------------------------------------------------------------------------------------------------

B. Regulatory Flexibility Act

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

    \192\ The number and type of schools were extracted from SEVIS, 
retrieved on September 5, 2019. More information on SEVIS can be 
found at https://www.ice.gov/sevis/overview.

---------------------------------------------------------------------------

[[Page 60581]]

    DHS estimated the percentage of public schools that are small 
entities using a random sample of the 1,346 SEVP-certified public 
schools. DHS does not keep data on the size of the jurisdiction where 
each SEVP-certified school is located and, therefore, needed to do 
additional research to determine which schools are small. Due to the 
large number of SEVP-certified public schools and the level of effort 
associated with additional data collection, DHS assessed the 
jurisdiction size for a sample of 299 public schools selected randomly 
from the 1,346 SEVP-certified public schools. \193\ Of these sampled 
schools, none were affiliated with a governmental jurisdiction with a 
population of less than 50,000 because most schools had a statewide 
jurisdiction. Of the 299 sampled public schools, DHS found that none of 
the public schools were small entities because they are in a 
governmental jurisdiction with a population greater than 50,000.\194\ 
Therefore, DHS estimates that all 1,346 public schools are not small 
entities.\195\
---------------------------------------------------------------------------

    \193\ In determining the sample size, DHS assumed a 95 percent 
confidence level (z-score of 1.96); 5 percent margin of error 
(e=0.05); and a 50 percent population proportion of small schools 
(p=0.5). DHS used the equation S = ((z[caret] 2*p(1 - p))/e[caret]2) 
/ (1+((z[caret]2 * p(1 - p))/(Ne[caret]2))), where S is sample size, 
N is population size, and all other variables are as described in 
this footnote. The equation used to calculate the sample size can be 
found in Daniel WW (1999). Biostatistics: A Foundation for Analysis 
in the Health Sciences. 7th edition. New York: John Wiley & Sons.
    \194\ Section 601(5) of the Regulatory Flexibility Act defines 
small governmental jurisdictions as governments of cities, counties, 
towns, townships, villages, school districts, or special districts 
with a population of less than 50,000.
    \195\ DHS is aware that this conclusion differs from that of the 
findings in the 2019 SEVP Fee Rule FRFA (See 84 FR 23930 (May 29, 
2019)). For the SEVP Fee Rule FRFA and the D/S NPRM IRFA, DHS used 
census data to search for the jurisdiction where the school was 
located. In the D/S NPRM IRFA, high schools were excluded from this 
search as they would not be subject to the rule limitations. Most 
public colleges and universities are run at the state level, and all 
states have a population greater than 50,000. In the SEVP Fee Rule 
FRFA, public elementary, secondary, and high schools are combined 
with public universities. There are necessarily more public 
elementary, secondary, and high schools than there are public 
universities. Therefore, DHS expects to see differences between the 
two rules.
---------------------------------------------------------------------------

    DHS conservatively assumes that all 4,183 private nonprofit schools 
are small entities because they are not dominant in their field. \196\ 
DHS also assumes that all 570 schools that are private schools without 
a for-profit/nonprofit designation are small entities. DHS requests 
comments from the public regarding these assumptions.
---------------------------------------------------------------------------

    \196\ Section 601(4) of the Regulatory Flexibility Act defines 
the term ``small organization'' to mean any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
---------------------------------------------------------------------------

    To determine which of the remaining 655 private for-profit schools 
are considered a small entity, DHS sampled 243 for-profit schools.\197\ 
DHS referenced the Small Business Administration (SBA) size standards 
represented by business average annual receipts. Receipts are generally 
defined as a firm's total income or gross income. SBA's Table of Small 
Business Size Standards provides business size standards for all 
sections of the North American Industry Classification System (NAICS) 
for industries.\198\ DHS matched information provided by the schools in 
SEVIS regarding what programs of study it is engaged in with an 
appropriate six-digit NAICS industry description. NAICS is the standard 
classification used to categorize business establishments for the 
purpose of collecting, analyzing, and publishing statistical data 
related to the U.S. economy.
---------------------------------------------------------------------------

    \197\ In determining the sample size, DHS assumed a 95 percent 
confidence level (z-score of 1.96); 5 percent margin of error 
(e=0.05); and a 50 percent population proportion of small schools 
(p=0.5). DHS used the equation S = ((z[caret] 2*p(1 - p))/e[caret]2) 
/ (1+((z[caret]2 * p(1 - p))/(Ne[caret]2))), where S is sample size, 
N is population size, and all other variables are as described in 
this footnote. The equation used to calculate the sample size can be 
found in Daniel WW (1999). Biostatistics: A Foundation for Analysis 
in the Health Sciences. 7th edition. New York: John Wiley & Sons.
    \198\ U.S. Small Business Administration, Tables of Small 
Business Size Standards Matched to NAICS Codes (Aug. 19, 2019), 
available at https://www.sba.gov/document/support--table-size-
standards.
---------------------------------------------------------------------------

    DHS found that the revenue of 163 of the 243 sampled for-profit 
schools fell below the SBA size standard of a small business according 
to their industry. Therefore, DHS estimates that 67 percent of all for-
profit schools authorized to enroll F nonimmigrants fall below the SBA 
size standard of a small business according to their industry. As a 
result, DHS estimates that 439 of the 655 for-profit schools fall below 
the SBA size standard of a small business according and are considered 
small entities (67% x 655 = 438.85, rounded to 439). Table 17 shows a 
breakdown of the number of small for-profit SEVP-certified schools by 
industry.
    DHS estimated each private school's annual receipts by multiplying 
the approximate annual cost of room, board, and tuition by the average 
annual number of total students based on data provided by the schools 
to SEVP. DHS acknowledges that this method of estimating receipts may 
be an incomplete account of a school's income, which may also include 
contributions from private individuals or other endowments. Because 
these data reflect a snapshot of all SEVP-certified schools authorized 
to enroll F students in 2018, DHS acknowledges there may be changes in 
the school's enrollment numbers and that a school's estimated revenue 
may differ from actual revenue, which could include income generated 
from other sources.

                                                 Table 17--For-Profit SEVP-Certified Schools by Industry
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Total SEVP-
                     School industry                       Size standard    NAICS codes      Number of    Number of non-     certified     Percent small
                                                                                           small schools   small 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 Instruction.........             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.

[[Page 60582]]

 
\2\ Number of schools derived from SEVIS data.

    Table 18 shows a summary by school type of the number of SEVP 
certified schools authorized to enroll F nonimmigrants and estimated 
small entities. DHS estimates that 5,192 schools meet the SBA 
definition of a small entity, or approximately 77 percent of the 6,754 
schools included in 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
    As of 2018, there were a total of 1,171 J exchange visitor program 
sponsors that would be subject to the proposed rule because they are 
authorized by DOS to sponsor J exchange visitor programs for a length 
of time greater than 1 year. Of these sponsors, 54 are government 
entities, 891 are schools, 23 are hospitals and related institutions, 
141 are nonprofit institutions, and 62 are for-profit institutions. 
These sponsors issue DS-2019s according to certain designation codes 
that map to specific programs. Table 19 shows the type for each J 
exchange visitor program 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 scientific 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
    DHS determined that all 54 government entities (G-1, G-2, G-3, G-4, 
G-5, and G-7 program sponsors) are large entities because 30 are 
federal government entities and 24 are state or local government 
entities. Of the 24 state or local government entities, all represented 
jurisdictions with populations greater than 50,000. Therefore, DHS 
classified all 54 government entities as large entities.
Educational Institutions
    DHS identified 891 schools that are J exchange visitor program 
sponsors. To identify which J exchange visitor program sponsors were 
small entities, DHS compared the 891 schools sponsoring J exchange 
visitor programs to the schools authorized to enroll F nonimmigrants. 
Of the 891 schools sponsoring J exchange visitor programs, 713 (80 
percent) also enrolled F nonimmigrants. Of the 713 schools sponsoring 
both F and J nonimmigrants, 357 (50 percent) of the schools are public 
schools and 357 (50 percent) are private, nonprofit schools. DHS 
assumes that the remaining 178 (20 percent) of schools sponsoring only 
J exchange visitors are also 50 percent public and 50 percent private, 
nonprofit schools. DHS thus estimates that there would be 446 public 
schools and 446 private, nonprofit schools (50 percent each of the 891 
J-sponsor schools). Since all affected public schools have been found 
to be large entities and all affected private, nonprofit schools are 
assumed to be small entities, DHS estimates that 446 of the 891 J-
sponsor schools are small entities.
Hospitals and Related Institutions
    DHS identified 23 hospitals and related institutions sponsoring J 
exchange visitor programs. Of these 23 hospitals, 22 are nonprofit. DHS 
assumes that all 22 private nonprofit hospitals are small entities 
because they are not dominant in their fields. Only one hospital and 
related institution, a health maintenance organization medical health 
center with six-digit NAICS code 621491, sponsoring J exchange visitor 
programs is a for-profit institution that exceeded the threshold of 
$32.5 million annually in receipts for being a large entity.
Nonprofit Organizations
    DHS conservatively assumes that all 141 nonprofits sponsoring J 
exchange visitor programs are small entities because they are not 
dominant in their field. DHS requests comments on these assumptions.
For-Profit Organizations
    DHS identified a total of 62 potentially affected for-profit 
organizations sponsoring J exchange visitor programs. In order to 
determine which of these for-profit entities may be

[[Page 60583]]

affected by the proposed rule, DHS identified sponsors eligible to 
sponsor J exchange visitor programs for longer than one year, as those 
would be the only sponsors potentially affected by the rule. Sponsors 
for exchange visitors enrolled in short-term scholar, intern, 
specialist, secondary school student, college and university student, 
summer work travel, camp counselor, and au pair programs would not be 
affected by the proposed rule as the programs they offer are too short 
to be affected. Using these guidelines, DHS identified 61 organizations 
sponsoring J exchange visitor participants with a potential stay of 
greater than one year. Of these 61 organizations, DHS identified 32 
potentially affected small entities. To identify these small entities, 
DHS referenced the SBA size standards represented by business average 
annual receipts. Receipts are generally defined as a firm's total 
income or gross income. SBA's Table of Small Business Size Standards is 
matched to the NAICS for industries.\199\ DHS matched information 
provided by the sponsors in SEVIS with an appropriate NAICS industry 
description.
---------------------------------------------------------------------------

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

Total J Exchange Visitor Program Sponsors
    Overall, DHS identified 1,171 unique entities sponsoring J exchange 
visitor programs. Of these 1,171 entities, DHS identified 642 small 
entities that may be affected by the proposed rule. Table 20 shows a 
summary by sponsor type of the number of J exchange visitor program 
sponsors and estimated small entities. DHS requests comments on these 
assumptions, particularly with regard to J exchange visitor program 
nonprofit 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                          1               0
 Development (USAID)....................
Other U.S. Federal agencies.............              26               0
International agencies or organizations                1               0
 \1\....................................
Other national, state, or local                       24               0
 government agencies....................
National research and development center               1               0
 or laboratory \2\......................
Educational institutions \3\............             891             447
Hospitals and related institutions......              23              22
Nonprofit organizations, associations,               141             141
 etc.\4\................................
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 technological 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 Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities That Will Be Subject to the Requirement 
and the Types of Professional Skills Necessary for Preparation of the 
Report or Record
    The proposed rule would increase costs for SEVP-certified schools 
and J exchange visitor program sponsors because DSOs and ROs would have 
to spend approximately 40 hours for rule familiarization and adaptation 
(in the first year only; 8 hours to complete rule familiarization 
training, 16 hours to create and modify training materials, and 16 
hours to adapt to the proposed rule through system wide briefings and 
systemic changes) and approximately 3 hours per F-1/J-1 program 
extension request to review the Form I-539 completed by the F-1/J-1 
nonimmigrant (1 hour), update the SEVIS record and track program 
extension requests (1 hour), and advise the F-1/J-1 nonimmigrant about 
the extension process and the requirements to file an EOS with USCIS (1 
hour annually). DHS estimates the annual impact to small SEVP-certified 
schools and J exchange visitor program sponsors based on the cost of 
compliance as represented as a percentage of their annual revenue. This 
analysis examines the impact that the proposed rule would have on small 
SEVP-certified schools and J exchange visitor program sponsors.
    The IRFA evaluates the impacts that have been quantitatively 
estimated in the regulatory impact analysis. As discussed in the 
regulatory impact analysis, there are other proposed rule requirements 
that could impact small SEVP-certified schools and J exchange visitor 
program sponsors. The regulatory impact analysis qualitatively 
discusses proposed requirements affecting English language training 
programs; changes in educational levels; and extensions to employment 
authorizations. Therefore, the potential impacts of these requirements 
on small entities is not quantitatively evaluated in this IRFA.
SEVP-Certified Schools Authorized to Enroll F Nonimmigrants
    As shown in Table18, DHS estimates that 5,192 SEVP-certified 
schools that are authorized to enroll F nonimmigrants meet the SBA 
definition of a small entity, including 4,183 private, nonprofit 
schools; 570 private schools without a for-profit/nonprofit 
designation; and 439 for-profit schools. DHS determined a SEVP-
certified school's annual revenue by multiplying the average cost per F 
student by average annual enrollment. DHS acknowledges that this method 
to estimate revenue may be an incomplete account of a SEVP-certified 
school's revenue, which may also include contributions from private 
individuals or other endowments.

[[Page 60584]]

    DHS examined all 5,192 small SEVP-certified schools authorized to 
enroll F nonimmigrants to estimate the impact of estimated DSO rule 
familiarization and adaptation costs in the first year of the rule. For 
this analysis, DHS assumed that each small SEVP-certified school has 
three DSOs that will incur rule familiarization and adaptation costs. 
\200\ For each DSO, rule familiarization will cost $1,690 (40 hours x 
$28.93 x 1.46 loaded wage rate factor). in the first year after the 
rule takes effect. \201\ DHS calculated the impact of rule 
familiarization and adaptation on SEVP-certified schools by dividing 
the rule familiarization and adaptation costs for three DSOs ($5,069) 
by each school's estimated annual revenue. For the private, for-profit 
schools, DHS assessed impacts of the rule familiarization and 
adaptation costs on the sample of for-profit schools and applied the 
percentage of schools falling within each impact category to the full 
universe of small for-profit schools.
---------------------------------------------------------------------------

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

    Table 21 shows the number of small schools within the range of 
impact to each school's estimated annual revenue. Of the 5,192 small 
schools, 5,007, or 96.4 percent, would experience an impact less than 
or equal to 1 percent of their estimated annual revenue as a result of 
the rule familiarization and adaptation costs. DHS estimates 118 small 
schools (2.3 percent) would realize an impact between 1 percent and 2 
percent of their estimated annual revenue, 29 small schools (0.6 
percent) would realize an impact between 2 percent and 3 percent, and 
38 small schools (0.7 percent) would realize an impact greater than or 
equal to 3 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 revenue
         Type of school          ----------------------------------------------------------------      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 SEVP-certified schools to 
estimate the impact of annual DSO costs for processing program 
extension requests and updating SEVIS. For this analysis, DHS estimated 
the number of program extension requests that each school is expected 
to process by dividing the estimated annual number of F-1 nonimmigrant 
EOS requests from the full implementation period (249,017; see Table 6) 
by the total number of SEVP-certified schools, small and large (6,754). 
This methodology produced an estimated average of 37 annual EOS 
requests for each school. The DSO cost per EOS request is $127 (3 hours 
x $28.93 x 1.46 loaded wage rate factor).\202\ DHS calculates the 
impact by dividing the processing costs for 37 EOS requests ($4,670) by 
each school's estimated annual revenue. For the for-profit schools, DHS 
assessed impacts of EOS costs on the sample of for-profit schools and 
applied the percentage of schools falling within each impact category 
to the full universe of small for-profit schools.
---------------------------------------------------------------------------

    \202\ See Section V.A of the NPRM for a detailed discussion of 
DSO and RO Rule Familiarization and Adaptation Costs.
---------------------------------------------------------------------------

    Of the 5,192 small schools, 5,025, or 96.8 percent, would 
experience an impact less than or equal to 1 percent of their estimated 
annual revenue. DHS estimates 108 small schools (2.1 percent) would 
realize an impact between 1 percent and 2 percent of their estimated 
annual revenue, 27 small schools (0.5 percent) would realize an impact 
between 2 percent and 3 percent, and 32 small schools (0.6 percent) 
would realize an impact greater than or equal to 3 percent. Table 22 
shows the number of small schools within the range of impact to each 
school's 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 impact category to the full universe of small for-profit schools.


[[Page 60585]]

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

    \203\ Schools with 37 or fewer students include religious 
institutions, Montessori schools, schools for students with 
disabilities, specialty graduate schools, and boarding schools.

 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                       with impacts >=3%
                   Type of school                         or under 37      Number of schools   and enrollment at
                                                         students and      with impacts >=3%      or under 37
                                                         impacts >=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 impact category to the full universe of small for-profit schools.

J Exchange Visitor Program Sponsors
    As shown in Table 20, 642 J exchange visitor program sponsors meet 
the SBA definition of a small entity. Because reliable financial 
information is not available for all J sponsors, DHS did not assess 
impacts of the proposed rule for each small J exchange visitor program 
sponsor. Instead, DHS determined the minimum earnings required for 
proposed rule costs to equal 1 percent, 2 percent, and 3 percent of J 
sponsor revenue. For this analysis, DHS assumed that each small J 
exchange visitor program sponsor will have three ROs that will incur 
rule familiarization and adaptation costs in the first year.\204\ To 
assess the annual impacts of costs for processing program extension 
requests and updating SEVIS, DHS estimated the number of program 
extension requests that each J exchange visitor program sponsor is 
expected to process by dividing the estimated annual number of J-1 
nonimmigrant EOS requests from the full implementation period (11,565; 
see Table 6) by the total number of J exchange visitor program 
sponsors, small and large (1,171). This methodology produced an 
estimated average of 10 annual EOS requests for each J sponsor. DHS 
recognizes that small entities will likely process fewer EOS requests 
than the average but does not have more detailed data on the EOS 
requests by entity. DHS also recognizes potential non-quantifiable 
risks of reduced enrollment in J exchange visitor programs that can 
lead to revenue reductions.
---------------------------------------------------------------------------

    \204\ DHS estimated costs assuming that each small J exchange 
visitor program sponsor has one, three, and five ROs. DHS presented 
the estimates for three ROs as a midpoint value. The actual number 
of ROs may vary by small J exchange visitor program sponsor. DHS 
welcomes public comment on the average number of ROs at small J 
exchange visitor program sponsors.
---------------------------------------------------------------------------

    Table 24 provides the minimum annual earnings required for proposed 
rule costs to equal 1 percent, 2 percent, and 3 percent of J exchange 
visitor program visitor sponsor revenue. The impact of the RO rule 
familiarization and adaptation costs of the proposed rule ($5,069) will 
not exceed 1 percent of sponsor earnings if earnings are at least 
$506,854. If J exchange visitor program sponsors earnings are at least 
$168,951 or $253,427, the rule familiarization and adaption costs of 
the proposed rule will not exceed 3 percent or 2 percent, respectively, 
of sponsor earnings. DHS anticipates that the majority of small J 
sponsors will have earnings that exceed these thresholds. DHS requests 
comments on the availability of earnings data for J exchange visitor 
program sponsors in order to refine this analysis.
    The impact of the costs for processing program extension requests 
and updating SEVIS (10 EOS requests; $1,251) will not exceed 1 percent 
of sponsor earnings if earnings are at least $125,144. If J exchange 
visitor program sponsor earnings are at least $41,715 or $62,572, the 
EOS request processing costs of the proposed rule will not exceed 3 
percent or 2 percent, respectively, of sponsor earnings. DHS 
anticipates that the majority of small J sponsors will have earnings 
that exceed these thresholds. DHS requests comments on the availability 
of earnings data for J exchange visitor program 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.


[[Page 60586]]

5. An Identification, to the Extent Practicable, of All Relevant 
Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    Department of State Exchange Visitor Program regulations would need 
to be updated to inform the sponsor community of this new EOS 
procedure. The regulations at 22 CFR part 62.43 describe the procedures 
for J-1 program extensions. These regulations may need to be updated to 
reference the changes made in this proposed rule, whereby a J-1 must 
file for an extension of stay with USCIS in order to remain in the 
United States beyond the status expiration date on their I-94, or 
depart the United States and seek admission as a J-1 nonimmigrant at a 
port of entry, in addition to securing a program extension from the 
Responsible Officer or from the Department of State, as required by the 
current regulations.''
6. A Description of Any Significant Alternatives to the Proposed Rule 
Which Accomplish the Stated Objectives of Applicable Statutes and 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities
    DHS first considered a ``no action'' alternative, under which DHS 
would continue admitting nonimmigrants with F, I, and J status without 
an end date for their authorized periods of stay. DHS determined that 
this alternative would not adequately provide immigration officers with 
an opportunity to evaluate an alien's maintenance of status at pre-
determined points, nor would it enable immigration officers an 
opportunity to assess whether an alien is accruing unlawful presence, 
and the `no action' alternative would do nothing to address the fraud 
and abuse currently present in these categories.
    Another alternative DHS considered was to admit F and J 
nonimmigrants to their program end date, not to exceed 3 years (or 1 
year for nonimmigrants meeting certain conditions). While such an 
option would provide the Department with more frequent direct 
evaluations of nonimmigrants than a 4-year maximum period of admission 
(or 2-year maximum for nonimmigrants meeting certain conditions), DHS 
was concerned it would be unduly burdensome on many F and J 
nonimmigrants. DHS believes that a period of admission for up to 4 
years best aligns with the normal progress for most programs. A 3-year 
maximum period of stay would require almost every nonimmigrant enrolled 
in a 4-year program to apply for an EOS and would result in greater 
administrative burdens on USCIS and CBP compared to the proposed 4-year 
maximum period of admission. Specifically, USCIS would have to 
adjudicate extension of stay applications with more frequency if a 3-
year maximum period of stay is chosen over a 4-year one. Similarly, CBP 
would have to process applications for admission at POEs more 
frequently under the 3-year maximum period of stay alternative. 
Therefore, DHS believes an admission for the program end date, not to 
exceed 4 years (except for limited exceptions that would limit 
admissions to 2 years) is the best option and welcomes comments on this 
proposal.
    DHS also considered a standard 1-year fixed admission period for 
all F and J nonimmigrants. This option would treat all nonimmigrants 
with F and J status equally and would likely allow for easier 
implementation by CBP at the POEs. Nevertheless, it could result in 
significant costs to nonimmigrants and the Department. There are more 
than 1 million F students who are enrolled in programs of study that 
last longer than 1 year. With a 1-year admission period, DHS expects 
that all of them would be required to apply for additional time. This 
could be a significant cost to students and exchange visitors, 
especially those who comply with the terms and conditions of their 
admission and those attending undergraduate programs that typically 
require 4 years to complete. Further, such a short admission period 
could have unintended consequences. If USCIS's EOS processing time is 
significantly lengthened due to a 1-year admission period, cases 
presenting national security or fraud concerns would not necessarily be 
prioritized, thereby allowing a mala fide student or exchange visitor 
to remain in the United States until USCIS adjudicated his or her 
petition.
    DHS requests comment on the impacts on small entities. Members of 
the public should submit a comment, as described in this proposed rule 
under Public Participation, if they think that their business, 
organization, or governmental jurisdiction qualifies as a small entity 
and that this proposed rule would have a significant economic impact on 
it. It would be helpful if commenters provide DHS with as much 
information as possible as to why this proposed rule would create an 
impact on small businesses. Commenters should also describe any 
recommended alternative measures that would mitigate the impact on 
small businesses.

C. Small Business Regulatory Enforcement Fairness Act of 1996

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996, Public Law 104-121, we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult ICE using the 
contact information provided in the FOR FURTHER INFORMATION CONTACT 
section above.

D. Congressional Review Act

    This proposed rule is a major rule as defined by 5 U.S.C. 804, also 
known as the ``Congressional Review Act,'' as enacted in section 251 of 
the Small Business Regulatory Enforcement Fairness Act of 1996, Public 
Law 104-121, 110 Stat. 847, 868 et seq. Accordingly, this rule, if 
enacted as a final rule, would be effective at least 60 days after the 
date on which Congress receives a report submitted by DHS under the 
Congressional Review Act, or 60 days after the final rule's 
publication, whichever is later.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any year. Though this proposed rule would not 
result in such an expenditure, DHS does discuss the effects of this 
rule elsewhere in this preamble.

F. Paperwork Reduction Act--Collection of Information

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 
Stat. 163 (1995) (PRA), all Departments are required to submit to OMB, 
for review and approval, any reporting or recordkeeping requirements 
inherent in a rule. DHS, USCIS and ICE are revising one information 
collection and proposing non-substantive edits to one information 
collection in association with this rulemaking action:
I-539 and I-539A
    DHS, USCIS and ICE invite the general public and other federal 
agencies to comment on the impact to the proposed collection of 
information.

[[Page 60587]]

In accordance with the PRA, the information collection notice is 
published in the Federal Register to obtain comments regarding the 
proposed edits to the information collection instrument.
    Comments are encouraged and will be accepted for 60 days from the 
publication date of the proposed rule. All submissions received must 
include the OMB Control Number 1615-0003 in the body of the letter and 
the agency name. To avoid duplicate submissions, please use only one of 
the methods under the ADDRESSES and Public Participation section of 
this rule to submit comments. Comments on this information collection 
should address one or more of the following four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
Overview of Information Collection
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Application to Extend/Change 
Nonimmigrant Status.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: I-539 and I-539A; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households. This form 
will be used for nonimmigrants to apply for an extension of stay, for a 
change to another nonimmigrant classification, or for obtaining V 
nonimmigrant classification.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection Form I-539 
(paper) is 318,421 and the estimated hour burden per response is 2.38 
hours; the estimated total number of respondents for the information 
collection Form I-539 (e-file) is 136,466 and the estimated hour burden 
per response is 1.083 hours; the estimated total number of respondents 
for the information collection Supplement A is 83,712 and the estimated 
hour burden per response is .50 hours; the estimated total number of 
respondents for biometrics processing is 538,599 and the estimated hour 
burden per response is 1.17 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection of information in hours is 1,577,242.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $105,461,002.
USCIS Form I-765 and I-756 WS
    Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-12, DHS 
must submit to OMB, for review and approval, any reporting requirements 
inherent in a rule unless they are exempt. Although this rule does not 
impose any new reporting or recordkeeping requirements under the PRA 
for this information collection, this rule will require non-substantive 
edits to USCIS Form I-765, Application for Employment Authorization. 
Accordingly, USCIS has submitted a Paperwork Reduction Act Change 
Worksheet, Form OMB 83-C, and amended information collection 
instruments to OMB for review and approval in accordance with the PRA.

G. Executive Order 13132: Federalism

    This proposed rule would not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. DHS does not expect that this proposed 
rule would impose substantial direct compliance costs on State and 
local governments, or preempt State law even though schools, colleges, 
and universities may choose to enroll in E-Verify to permit their 
students a longer initial period of admission. Therefore, in accordance 
with section 6 of Executive Order 13132, it is determined that this 
rule does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement.

H. Executive Order 12988: Civil Justice Reform

    This proposed rule meets applicable standards set forth in sections 
3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to 
eliminate drafting errors and ambiguity, minimize litigation, provide a 
clear legal standard for affected conduct, and promote simplification 
and burden reduction.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    DHS has analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. DHS has determined that it is not a ``significant 
energy action'' under that order because it is a ``significant 
regulatory action'' under Executive Order 12866 but is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy.

J. National Environmental Policy Act (NEPA)

    DHS Management Directive (MD) 023-01 Rev. 01 and Instruction Manual 
(IM) 023-01-001-01 Rev. 01 establish the policy and procedures that DHS 
and its Components use to implement the requirements of the National 
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4375, and the 
Council on Environmental Quality (CEQ) regulations for implementing 
NEPA, 40 CFR parts 1500 through 1508.
    The CEQ regulations enable federal agencies to establish categories 
of actions that do not individually or cumulatively have a significant 
effect on the human environment and, therefore, do not require an 
Environmental Assessment or Environmental Impact Statement. 40 CFR 
1508.4. DHS's Categorical Exclusions are listed in IM 023-01-001-01 
Rev. 01, Appendix A, Table 1.
    For an action to be categorically excluded, the action must satisfy 
each of the following three conditions:
    1. The entire action clearly fits within one or more of the 
Categorical Exclusions;
    2. The action is not a piece of a larger action; and
    3. No extraordinary circumstances exist that create the potential 
for a significant environmental effect. IM 023-01-001-01 Rev. 01 sec. 
V(B)(2)(a)-(c).
    If the proposed action does not clearly meet all three conditions, 
DHS or the Component prepares an Environmental

[[Page 60588]]

Assessment or Environmental Impact Statement, according to CEQ 
requirements and MD 023-01 Rev. 01 and IM 023-01-001-01 Rev. 01.
    DHS proposes to amend its regulations to eliminate the practice of 
admitting F-1 nonimmigrant students, I nonimmigrant representatives of 
information media, and J-1 exchange visitors (and F-2/J-2 family 
members) for D/S. The proposed rule would provide for nonimmigrants 
seeking entry under F, I, or J visas to be admitted for the period 
required to complete their academic program, foreign information media 
employment, or exchange visitor program, not to exceed the periods of 
time defined in this proposed rule. The proposed rule would also 
require nonimmigrants seeking to continue their studies, foreign 
information media employment, or exchange visitor program beyond the 
admission period granted at entry to apply for extension. DHS has 
analyzed this proposed rule under MD 023-01 Rev. 01 and IM 023-01-001-
01 Rev. 01. DHS has determined that this proposed rulemaking action is 
one of a category of actions that do not individually or cumulatively 
have a significant effect on the human environment. This proposed rule 
completely fits within the Categorical Exclusion found in IM 023-01-
001-01 Rev. 01, Appendix A, Table 1, number A3(d): ``Promulgation of 
rules. that interpret or amend an existing regulation without changing 
its environmental effect.'' This proposed rule is not part of a larger 
action. This proposed rule presents no extraordinary circumstances 
creating the potential for significant environmental effects. 
Therefore, this proposed rule is categorically excluded from further 
NEPA review.
    DHS seeks any comments or information that may lead to the 
discovery of any significant environmental effects from this proposed 
rule.

K. Executive Order 13175: Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

L. Executive Order 12630: Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This proposed rule would not cause a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

M. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 requires agencies to consider the impacts of 
environmental health risk or safety risk that may disproportionately 
affect children. DHS has reviewed this proposed rule and determined 
that this rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children. Therefore, DHS has not prepared a 
statement under this executive order.

N. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act of 1995 (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impracticable. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies. This proposed rule does not use technical standards. 
Therefore, we did not consider the use of voluntary consensus 
standards.

O. Family Assessment

    DHS has determined that this proposed action will not affect family 
well-being within the meaning of section 654 of the Treasury and 
General Government Appropriations Act, enacted as part of the Omnibus 
Consolidated and Emergency Supplemental Appropriations Act of 1999 
(Pub. L. 105-277, 112 Stat. 2681).

P. Signature

    The Acting Secretary of Homeland Security, Chad F. Wolf, having 
reviewed and approved this document, is delegating the authority to 
electronically sign this document to Chad R. Mizelle, who is the Senior 
Official Performing the Duties of the General Counsel for DHS, for 
purposes of publication in the Federal Register.

List of Subjects

8 CFR Part 214

    Administrative practice and procedure, Aliens, Cultural exchange 
programs, Employment, Foreign officials, Health professions, Reporting 
and recordkeeping requirements, Students.

8 CFR Part 248

    Administrative practice and procedure, Aliens, Reporting and 
recordkeeping requirements.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

Regulatory Amendments

    Accordingly, DHS proposes to amend parts 214, 248, and 274a of 
chapter I, subchapter B, of title 8 of the Code of Federal Regulations 
as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 continues to read as follows:

    Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1356, and 1372; 
section 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 
114 Stat. 1477-1480; section 141 of the Compacts of Free Association 
with the Federated States of Micronesia and the Republic of the 
Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 
note, and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; 
Pub. L. 115-218.

0
2. Section 214.1 is amended by:
0
a. Adding paragraph (a)(4);
0
b. Revising paragraphs (b) introductory text, (b)(1) introductory text, 
(b)(2) introductory text, and (b)(3) introductory text;
0
c. Removing paragraph (b)(4);
0
d. Revising paragraphs (c)(2), (c)(3)(v), and (c)(5); and
0
e. Adding paragraphs (c)(6) and (m).
    The additions and revisions read as follows:


Sec.  214.1  Requirements for admission, extension, and maintenance of 
status.

    (a) * * *
    (4) Requirements for admission of aliens under section 
101(a)(15)(F) and (J). Aliens applying for admission as F or J 
nonimmigrants after [EFFECTIVE DATE OF FINAL RULE] will be

[[Page 60589]]

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

[[Page 60590]]

for the balance of the previously authorized admission period.
    (ii) An application for extension of stay in F, I, or J 
nonimmigrant status is abandoned if an alien departs the United States 
while the application is pending and seeks admission with a Form I-20 
or DS-2019 for a program end date beyond their previously authorized 
period of admission. USCIS will not consider as abandoned any 
corresponding applications for employment authorization.
* * * * *
    (m) Transition period from duration of status to a fixed admission 
date--(1) Transition from D/S admission to a fixed admission period for 
aliens properly maintaining F and J status on [EFFECTIVE DATE OF FINAL 
RULE]. Aliens with F or J status who are properly maintaining their 
status on [EFFECTIVE DATE OF FINAL RULE] with admission for duration of 
status are authorized to remain in the United States in F or J 
nonimmigrant status until the later date of either the expiration date 
on an Employment Authorization Document (Form I-766, or successor 
form), or the program end date noted on their Form I-20 or Form DS-
2019, as applicable, not to exceed a period of 4 years from [EFFECTIVE 
DATE OF FINAL RULE], plus the departure period of 60 days for F 
nonimmigrants and 30 days for J nonimmigrants. Any authorized 
employment or training continues until the program end date on such F 
or J nonimmigrant's Form I-20 or DS-2019, as applicable and as endorsed 
by the DSO or RO for employment or training, or expiration date on 
Employment Authorization Document (Form I-766, or successor form). 
Aliens who need additional time to complete their current course of 
study, including requests for post-completion OPT or STEM OPT, or 
exchange visitor program, or would like to start a new course of study 
or exchange visitor program must apply for an extension of stay with 
USCIS in accordance with paragraph (c)(2) of this section for an 
admission period to a fixed date.
    (2) Pending employment authorization applications with USCIS on 
[EFFECTIVE DATE OF FINAL RULE] filed by aliens with F-1 status. F-1 
aliens described in paragraph (m)(1) of this section who have timely 
and properly filed applications for employment authorization pending 
with USCIS on [EFFECTIVE DATE OF FINAL RULE] do not have to file for an 
extension or re-file such applications for employment authorization, 
unless otherwise requested by USCIS.
    (i) If the F-1's application for post-completion OPT or STEM-OPT 
employment authorization is approved, the F-1 will be authorized to 
remain in the United States in F status until the expiration date of 
the employment authorization document, plus 60-days. If the employment 
authorization application is denied, the F-1 would continue to be 
authorized to remain in the United States until the program end date 
listed on their Form I-20, plus 60 days, as long as he or she continues 
to pursue a full course of study and otherwise meets the requirements 
for F-1 status.
    (ii) Aliens in F-1 status with pending employment authorization 
applications, other than post-completion OPT and STEM-OPT, who continue 
to pursue a full course of study and otherwise meet the requirements 
for F-1 status, continue to be authorized to remain in the United 
States until the program end date listed on the Form I-20, plus 60 
days, regardless of whether the employment authorization application is 
approved or denied.
    (3) Transition from D/S admission to a fixed admission period for 
aliens with I status present in the U.S. on [EFFECTIVE DATE OF FINAL 
RULE]. Except for those aliens described in 8 CFR 214.2(i)(3)(ii), 
aliens in I nonimmigrant status who are properly maintaining their 
status on [EFFECTIVE DATE OF FINAL RULE] with admission for duration of 
status are authorized to remain in the United States in I nonimmigrant 
status for a period necessary to complete their activity, not to exceed 
[DATE 240 DAYS AFTER EFFECTIVE DATE OF FINAL RULE] with the exception 
of aliens in I nonimmigrant status presenting passports issued by the 
Hong Kong Special Administrative Region, who are authorized to remain 
in the United States in I nonimmigrant status for a period necessary to 
complete their activity, not to exceed [DATE 90 DAYS AFTER EFFECTIVE 
DATE OF FINAL RULE]. Aliens who need additional time to complete their 
employment must apply for an extension of stay with USCIS in accordance 
with paragraph (c)(2) of this section for an admission period to a 
fixed date.
    (4) Severability. The provisions in 8 CFR 214.1(m) are intended to 
be independent severable parts. In the event that any provision in this 
paragraph is not implemented, DHS intends that the remaining provisions 
be implemented as an independent rule.
0
3. Section Sec.  214.2 is amended by:
0
a. Revising the paragraph (f)(5) subject heading and paragraphs 
(f)(5)(i), (ii), (iv), and (vi);
0
b. Adding paragraph (f)(5)(vii);
0
c. Revising the paragraph (f)(7) subject heading and paragraphs 
(f)(7)(i), (iii), and (iv);
0
d. Adding paragraphs (f)(7)(v) through (viii);
0
e. Revising paragraph (f)(8);
0
f. Revising paragraphs (f)(9)(i), (f)(10)(i), (f)(10)(ii)(D), and 
(f)(11)(i);
0
g. Removing and reserving paragraph (f)(13);
0
h. Revising paragraph (f)(18)(iii);
0
i. Adding paragraphs (f)(20) and (21);
0
j. Revising paragraph (i), the paragraph (j) subject heading, and 
paragraphs (j)(1)(ii), (iv), (v), (vi), (vii), and (viii); and
0
k. Adding paragraphs (j)(1)(ix) and (j)(6) and (7).
    The revisions and additions read as follows:


Sec.  214.2   Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (f) * * *
    (5) Authorized admission periods--(i) General. If eligible for 
admission as described in paragraph (f)(1)(i) of this section, aliens 
seeking F-1 status may be granted such nonimmigrant status for up to 
the length of their program (including any period of authorized 
practical training time following the completion of studies to engage 
in post-completion optional practical training (OPT) and Science 
Technology Engineering and Mathematics Optional Practical Training 
(STEM OPT) extensions) listed on the Form I-20, not to exceed a period 
of 4 years, plus a period up to 30 days before the indicated report 
date or program start date listed on Form I-20 and an additional 30 
days at the end of the program, as provided in paragraph (f)(5)(iv) of 
this section, subject to the following exceptions:
    (A) Aliens subject to the limitations described in paragraph 
(f)(20) of this section may be admitted for the applicable period under 
that paragraph.
    (B) Aliens whose course of study is in a language training program 
are restricted to an aggregate total of 24 months of language study, 
including any school breaks and annual vacations.
    (C) Aliens who are granted F-1 status as border commuter students 
under the provisions in paragraph (f)(18) of this section may be 
admitted for the applicable period described under that paragraph.
    (D) Aliens who are granted F-1 status to attend a public high 
school are restricted to an aggregate of no more than 12 months to 
complete their course of study, including any school breaks and annual 
vacations.

[[Page 60591]]

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

[[Page 60592]]

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

[[Page 60593]]

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

[[Page 60594]]

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

[[Page 60595]]

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

[[Page 60596]]

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

[[Page 60597]]

authorization may be subject to any conditions and limitations of the 
initial authorization.
    (B) An Arrival-Departure Record (Form I-94 or successor form) is 
considered unexpired when combined with a USCIS receipt notice 
indicating receipt of a timely filed extension of stay application and 
a valid Form DS-2019, or successor form, indicating the duration of the 
program. An application is considered timely filed if the receipt 
notice for the application is on or before the date the admission 
period expires. Such extension may not exceed the earlier of 240 days, 
as provided in 8 CFR 274a.12(b)(20), or the date of denial of the 
alien's application for an extension of stay.
    (C) An alien in J-2 status whose admission period has expired (as 
indicated on his or her Form I-94) may not engage in employment until 
USCIS approves his or her application for employment authorization.
    (viii) Use of SEVIS. The use of the Student and Exchange Visitor 
Information System (SEVIS) is mandatory for designated program 
sponsors. All designated program sponsors must issue a SEVIS Form DS-
2019 to any exchange visitor requiring a reportable action (e.g., 
program extensions and requests for employment authorization), or for 
any aliens who must obtain a new nonimmigrant J visa. As of 2003, the 
records of all current or continuing exchange visitors must be entered 
in SEVIS.
    (ix) Current name and address. A J-1 exchange visitor must inform 
USCIS and the responsible officer of the exchange visitor program of 
any legal changes to his or her name or of any change of address, 
within 10 calendar days of the change, in a manner prescribed by the 
program sponsor. A J-1 exchange visitor enrolled in a SEVIS program can 
satisfy the requirement in 8 CFR 265.1 of notifying USCIS by providing 
a notice of a change of address within 10 calendar days to the 
responsible officer, who in turn shall enter the information in SEVIS 
within 10 business days of notification by the exchange visitor. In 
cases where an exchange visitor provides the sponsor a mailing address 
that is different than his or her actual physical address, he or she is 
responsible to provide the sponsor his or her actual physical location 
of residence. The exchange visitor program sponsor is responsible for 
maintaining a record of, and must provide upon request from USCIS, the 
actual physical location where the exchange visitor resides.
* * * * *
    (6) Limitations on length of admission. Subject to the discretion 
of the Secretary of Homeland Security, in consultation with the 
Secretary of State, a J-1 exchange visitor in the following categories 
may be admitted for a period of up to the length of the exchange 
visitor program as stated on the Form DS-2019 or up to 2 years, 
whichever is shorter, and may be eligible to apply for extensions of 
stay for additional periods of up to 2 years each, until the end date 
of the exchange visitor program. These categories of 2-year periods of 
admission are:
    (i) Certain countries and U.S. national interest. Exchange visitors 
who were born in or are citizens of countries listed in the State 
Sponsor of Terrorism List or who are citizens of countries with a 
student and exchange visitor total overstay rate greater than ten 
percent according to the most recent DHS Entry/Exit Overstay report. 
DHS will publish a document in the Federal Register listing the 
countries or circumstances making aliens in J-1 status subject to the 
factors listed in this paragraph and such other factors that may serve 
the U.S. national interest. Changes to the list will be made by a new 
Federal Register document; or
    (ii) E-Verify participation. The J exchange visitor is 
participating in an exchange visitor program whose sponsor is not 
enrolled in E-Verify, or if enrolled, is not a participant in good 
standing in E-Verify as determined by USCIS. A sponsor is a participant 
in good standing in the E-Verify program if it has enrolled in E-Verify 
with respect to all hiring sites in the United States at the time of 
the exchange visitor's admission in J-1 status or filing of an 
application for extension of or change to J-1 status with USCIS, is in 
compliance with all requirements of the E-Verify program, including but 
not limited to verifying the employment eligibility of newly hired 
employees in the United States; and continues to be a participant in 
good standing in E-Verify at any time during which the J-1 exchange 
visitor is participating in an exchange visitor program at the 
organization.
    (iii) Alien with a 4-year period of admission who becomes subject 
to a 2-year maximum period of admission. If an alien in J status was 
originally admitted for a 4-year period of admission, but a new Federal 
Register document is subsequently published according to paragraph 
(j)(6)(i) of this section that would subject the alien to the 2-year 
maximum period of admission, then the alien may remain in the United 
States for the remainder of the 4-year period. However, if the J-1 
exchange visitor departs the United States or otherwise must apply for 
admission or extension of stay, that alien will become subject to the 
2-year limitation.
    (7) Severability. The provisions in this paragraph (j) are intended 
to be independent severable parts. In the event that any provision in 
this paragraph is not implemented, DHS intends that the remaining 
provisions be implemented as an independent rule.
* * * * *

PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION

0
4. The authority citation for part 248 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.

0
5. Section 248.1 is amended:
0
a. By redesignating paragraphs (e) and (f) as paragraphs (g) and (h), 
respectively, and adding new paragraphs (e) and (f);
0
b. In newly redesignated paragraph (g) by removing the words ``A 
district director shall'' and adding in their place ``USCIS will''; and
0
c. In the first and second sentences of newly redesignated paragraph 
(h) by removing the word ``shall'' and adding in its place ``will''.
    The additions read as follows:


Sec.  248.1  Eligibility

* * * * *
    (e) Admission of aliens under section 101(a)(15)(F) and (J) 
previously granted duration of status--Aliens who were granted a change 
to F or J status prior to [EFFECTIVE DATE OF FINAL RULE] and who 
departed the United States and are applying for admission on or after 
[EFFECTIVE DATE OF FINAL RULE] will be inspected and may be admitted 
into the United States up to the program end date as noted on the Form 
I-20 or DS-2019 that accompanied the change of status application that 
was approved prior to the alien's departure, not to exceed a period of 
4 years, unless subject to 8 CFR 214.2(f)(20) or (j)(6). To be admitted 
into the United States, all aliens must be eligible for the requested 
status and possess the proper documentation including a valid passport, 
valid nonimmigrant visa, if required, and valid Form I-20 or Form DS-
2019, or successor form.
    (f) Abandonment of change of status application. If an alien timely 
files an application to change to another nonimmigrant status but 
departs the United States while the application is pending, USCIS will 
consider the change of status application abandoned.
* * * * *

[[Page 60598]]

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
6. The authority citation for part 274a continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR 
part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-
74, 129 Stat. 599.

0
7. Section 274a.12 is amended by revising paragraphs (b)(6)(i), (iii), 
and (v), (b)(10), and (c)(3)(iii) to read as follows:


Sec.  274a.12  Classes of aliens authorized to accept employment.

* * * * *
    (b) * * *
    (6) * * *
    (i) On-campus employment for not more than 20 hours per week when 
school is in session or full-time employment when school is not in 
session if the student intends and is eligible to register for the next 
term or semester. Part-time on-campus employment is authorized by the 
school. On-campus employment terminates on the alien's fixed date of 
admission as noted on his or her Form I-94. If applicable, the 
employment authorization of an alien described in 8 CFR 
214.2(f)(5)(vii) may be automatically extended for up to 180 days, or 
until authorized by USCIS, whichever is earlier. In cases where the 
employment is authorized pursuant to 8 CFR 214.2(f)(5)(v), the validity 
of the employment authorization is provided by notice in the Federal 
Register and indicated by a Certificate of Eligibility for Nonimmigrant 
(F-1/M-1) Students, Form I-20 or successor form, endorsed by the 
Designated School Official recommending such an extension.
* * * * *
    (iii) Curricular practical training (internships, cooperative 
training programs, or work-study programs that are part of an 
established curriculum) after having been enrolled full-time in a SEVP-
certified institution for one full academic year. Curricular practical 
training (part-time or full-time) is authorized by the Designated 
School Official on the student's Form I-20, or successor form. 
Curricular practical training terminates on the earlier of the 
employment end date indicated on Form I-20, or successor form, or on 
the alien's fixed date of admission as noted on his or her Form I-94. 
If applicable, an alien described in 8 CFR 214.2(f)(5)(vii) must not 
engage in curricular practical training until USCIS approves an alien's 
extension of stay request.
* * * * *
    (v) The beneficiary of an H-1B petition and change of status 
request as described in 8 CFR 214.2(f)(5)(vi)(A) and whose status and 
employment authorization have been extended pursuant to 8 CFR 
214.2(f)(5)(vi). These aliens are authorized to continue employment 
with the same employer beginning on the date of the expiration of the 
authorized period of admission until April 1 of the fiscal year for 
which H-1B status is requested. Such authorization will be subject to 
any conditions and limitations noted on the initial authorization. Such 
authorization, however, will automatically terminate upon the 
notification date in the denial decision if USCIS denies the H-1B 
petition or request for change of status. If USCIS approves the H-1B 
petition and associated change of status request, and the change of 
status will take effect prior to April 1 of the fiscal year for which 
H-1B status was requested, such authorization will automatically 
terminate on the date that the change of status takes effect.
* * * * *
    (10) A foreign information media representative (I), pursuant to 8 
CFR 214.2(i). An alien in this status may be employed pursuant to the 
requirements of 8 CFR 214.2(i). Employment authorization does not 
extend to the dependents of a foreign information media representative.
* * * * *
    (c) * * *
    (3) * * *
    (iii) Is seeking employment because of severe economic hardship 
pursuant to 8 CFR 214.2(f)(9)(ii)(C) and has an Employment 
Authorization Document, Form I-766 or successor form, based on severe 
economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C), and whose 
timely filed Application for Employment Authorization, Form I-765 or 
successor form, and Application to Extend/Change Nonimmigrant Status, 
Form I-539 or successor form, are pending, is authorized to engage in 
employment beginning on the expiration date of the Employment 
Authorization Document issued under paragraph (c)(3)(i)(B) of this 
section and ending on the date of USCIS' written decision on the 
current Application for Employment Authorization, Form I-765 or 
successor form, but not to exceed 180 days. For this same period, such 
Employment Authorization Document, Form I-766 or successor form, is 
automatically extended and is considered unexpired when combined with a 
Certificate of Eligibility for Nonimmigrant (F-1/M-1) Students, Form I-
20 or successor form, endorsed by the Designated School Official 
recommending such an extension.
* * * * *

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S. 
Department of Homeland Security.
[FR Doc. 2020-20845 Filed 9-24-20; 8:45 am]
BILLING CODE 9111-28-P

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