DHS' proposal to remove D/S for F-1 Students - The Justification and Reasons

Prior to going into the information below, I wanted to mention that this interpretation is my own and based on working with international students for the past eight years. I am not providing legal advice, just to give a general understanding of that the proposed rule by DHS will do from the perspective of a DSO. The proposed rule can be found here: https://www.regulations.gov/document?D=DHS_FRDOC_0001-1933

I will be covering pages 60526 to 60536 in this article. (The executive summary and background).

One could almost imagine that this proposed rule to remove Duration of Status (D/S) for F, J, and I categories is in retaliation to the unlawful presence rule(August 2019) for D/S which has a permanent injunction against it. DHS removed their appeal to the ruling in July of 2020. NAFSA has a good summary of this here. Even though there may be more in the works to come for this in spring of 2021, removing D/S would allow for unlawful presence to accrue anyway.

Historically, D/S was first implemented in 1978 based on the reasons that it was too much of a burden to process all the applications for extensions of stay (EOS). Students were only granted one year at a time during this time, but the lesson learned by INS was that requiring students to continually extend their stay for studies could be put on the schools to take care of and save the application workload by USCIS by creating putting this category under D/S.

Now that the population of international students have far out-grown the numbers from the 1970s, it seems odd that DHS believes that now is a great time to go back to the old method that was proven not to work! Let's not forget that USCIS has already shown in the past years that applications submitted are not adjudicated in ample amount of time. Even with D/S removed and stays of 2 or 4 years being put in its place, this is still going to create a huge burden on USCIS and put many students in bad situations. Which brings me to a point that I will continually stress in these articles. How is SEVIS not sufficient enough to track student progress in the U.S.? What is wrong with the current system to justify the removal of D/S?

The summary of some of these proposed changes are outlined below:

• Striking all references to D/S for F students
• Outlining process for approving a Extension of stay(EOS)
• Changing program lengths to 2 or 4 years. The 2 years is based on national security concerns and includes only certain countries.
• Limiting times a student can change their education levels.
• Decrease the grace period following program completion from 60 to 30 days.
• Initiating routine biometrics due to the EoS applications filed with USCIS.
• Limiting language training to 24 months
• Removing the ability to extend stay based on failing grades or academic probation/suspension.
• Removing the ability to work on CPT/OPT while pending EoS with USCIS

The idea of this new ruling is to "vigorously enforce our nation's immigration laws" and to "promptly detect national security concerns" by having students file for extension of stay with USCIS. The current proposal will have students file form I-539, which requires an application fee and biometrics. This has cause of major concern for me, based on the factors below.

1) Biometric fees are done at USCIS' facilities. Some students will have to travel long distances, just to make the appointment for biometrics. Filing fees are also burdensome on a whole group of the student body, that in many cases, are not necessary. The government already has this data, they just want to verify that you are still you, in essence.

2) SEVIS is barely mentioned in the context of enforcing and detecting national security threats. Those who follow the immigration laws remain in status while those who do not end up being terminated for the violation. ICE normally follows up on these cases. These students who violated their status would then go through the process required for removal or file for reinstatement, allowing for a judge or USCIS to determine that a violation had indeed occurred. In essence, abuse of the regulations are already handled through a very thorough tracking system that requires reporting of a student at least twice a year. I'm not sure how an application with USCIS will help with any additional tracking to show that abuse of this status has occurred.

The reasons that DHS uses to justify this action for Extension of Stay(EOS) applications instead of relying on SEVIS and ICE follow-up, is for the reasons below.

a) DSO's may not be aware of the abuses. DSO's report and inform SEVP/ICE regarding potential violations and then let the government do research. This is with the assumption that they actually do this.

b) Students are staying in the U.S. longer than they should and violating the "spirit of the law"(p 60534). They are staying longer than DHS "thinks" they should and are "concerned" that they are working unauthorized in order to pay for their studies. Being concerned is not enough unless proof exists. There are no statistics given. How can an application for EOS solve this? It can't know for sure and it doesn't justify the reasons well enough.

c) They do not think that when a student applies for OPT or a reinstatement is providing enough oversight in abuses. Considering that almost all applications for OPT and reinstatement are approved, it doesn't seem necessary to assume that violations are occurring to justify additional applications to extend stay.

d) Some fake schools have committed fraud. These are not the fault of students, it's a criminal offence of certain individuals that ICE should be tracking to catch. Don't blame the entire study body for this. This is not a widespread issue. SEVP field reps were implemented to help keep track of what schools are doing and how they are handling their F students. Isn't this oversight enough to make sure that fraud is lessened and for schools to remain focused on reporting correctly?

e) They do not believe that SEVIS is able to timely and accurately track students and their activities in the U.S. and that filing for another EoS will help. Really? SEVIS was built to track all F(as well as F and M) students in the U.S. during their studies and employment periods.

f) They believe an immigration officer at USCIS will better understand and evaluate the length of stay needed for a student to complete their program, not the school itself or the DSO at the school. For example, how would someone who only received a bachelor's degree truly understand the hours or work it takes to a PhD?

g) Since the 1991 final rule for D/S, DHS has "relied on DSO's to report student status violators, issue program extensions, and transfer students between programs and schools." Why has this become a problem now? Why does USCIS feel the need to add additional approval to extend stay? Why do they want to separate program extension and extension of stay? I'm not seeing any major concerns on my reporting to believe this. A student fails to enroll, the violation is reported.

h) The general risks of having such a sheer number of F students will complicate oversight and vetting and USCIS is there to help. SEVIS was put in place to handle this and schools have done a pretty good job in making sure that students follow the requirements. F-1 students have a lot of oversight and focus should be on other VISA categories which may be abused more.

3) Based on the USCIS ombudsman offices 2019 annual report which included information on OPT, it takes application for OPT an average of 12 minutes to approve. How will USCIS scrutinize EOS applications more so than for OPT?

4) Filing for an EOS requires similar documents for what schools would use to do a program extension anyway. Applications to USCIS would require getting required financial proof, show having maintained a residence abroad, explain why they couldn't complete their program in 4 years and why need more time. In essence, information that a school takes into consideration already for a program extension. How would USCIS provide additional screening that isn't already in place? These students aren't violating the status or abusing it, they are paying for tuition and enrolling in a full course of study.

The main argument here is that DHS has not done any grassroots meetings with students, University staff such as DSO's, or those who work closely with academics at a University or higher education level. DHS believes that most students will be able to achieve the completion of their objectives in four years, which is understandably based on Department of Education's suggestion, not what actually happens in real life.

The justifications behind DHS's proposed rule seems more based on concerns and fears rather than any actual proof of fraud. Terminated students in SEVIS are violators that ICE can track and follow up with. Those who attend school and follow regulations for their status shouldn't be forced to leave based on a person in a facility hundreds of miles away to determine if this particular student should continue to study or not. Making a decision to ask why 4 years wasn't enough to finish a PhD program. This takes away the personal side for a student and their struggles while limiting the power of DSO's to implement the laws and regulations for maintaining status.

Lastly, i know of a few students who have stayed longer than 10 years in the U.S. for studies. They are not abusing the "spirit of the law", but are actually working hard to complete their studies.

This proposal will put an undue burden on USCIS and CBP, on students, on Universities, and lessen the enrollment nationwide of foreign students who come to study in the U.S.