Proposed Student Visa Rules will Upend Decades of U.S. Policy and Practice

On September 25, Immigration and Customs Enforcement (ICE), the DHS agency with jurisdiction over F-1 foreign student visa holders, published new proposed regulations that would end the long time U.S. practice of issuing “Duration of Status”  to F-1 students. Instead, F-1 visa holders would be limited to 2 or 4 year visa terms depending upon their country of origin, and be required to reapply for F-1 Status through USCIS to obtain extensions, or to leave the United States and apply for an extension .  The proposed regulations were immediately criticized by the higher education community. The rules were called ill-conceived, misguided, unnecessary, and a burden to an industry that has already seen a steady decline in international student admissions.

Under current policy and practice, which has been in effect for at least 20 years, foreign students are not given a particular ending date to their legal stay in the United States. They are permitted to stay for as long as they continue to be in their program of study and making full-time progress toward their degree. The students’ progress and attendance is tracked and recorded by each university’s Designated Student Officer (DSO).  When students transfer or complete a degree and move to a new institution for their next degree, their record is transferred from one institution and DSO to another. Students who drop below full time or fail to register for classes are reported to ICE by the DSO.

The proposed rule takes all of the certainty out of the system, and will create a significant chilling effect on Foreign Students who are considering the United States for international education. Under current practice, a PhD student will be issued F-1 paperwork for 7 years with extensions available from the DSO if the degree research requires more time. Under the proposed system a PhD student will have to reapply for F-1 status after 4 years (and in certain cases every 2 years). If USCIS decides that the PhD student is not making satisfactory progress, or her grades were not good enough, the agency could deny the extension. University administrators and immigration advocates, ask why would any international student take the chance to begin a PhD program in the United States, that there is no guarantee she will be allowed to finish,  especially when there are any other number of countries she could choose for higher education.

One (of many) particularly problematic aspect of the proposed rule is how ICE determines which students are required to renew every 2 years, and which are required to renew every  4 years. As drafted,  renewals every 2 years are required for students born in countries designated as state sponsors of terrorism (Iran, North Korea, Sudan and Syria)  or citizens of countries with F-1 overstay rates exceeding 10 percent.  The limitation based on countrywide visa overstay rates would disproportionately impact students from Africa and parts of Asia.  Based upon the latest data from the Department of Homeland Security on overstay rates students from Ghana, Nigeria, the Philippines and Vietnam, among many others, would be required to reapply every 2 years.  Immigration data and policy analysts argue the that the DHS overstay data is flawed and as such should not be relied upon for making new rules for F-1 Students.

Comments are due on 10/26/2020.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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