The Trump administration published notice on Wednesday that it intends to propose a new rule in fall 2019 establishing a maximum period of authorized stay for international students and other holders of certain nonimmigrant visas.
The government says the planned rule is "intended to decrease the incidence of nonimmigrant student overstays and improve the integrity of the nonimmigrant student visa." Advocates for international exchange are worried, however, that the introduction of such a rule could limit flexibility for international students and scholars and undercut efforts by U.S. universities to recruit them. The number of international students in the U.S. declined in the 2017-18 academic year after years of steady growth.
Currently, student visas are generally valid for what's known as “duration of status,” which means that international students in the U.S. can stay indefinitely as long as they maintain their status as students. Students can fall out of status by failing to maintain a full-time course of study or working without authorization, but as long as they follow the regulations associated with their student visa, they can stay in the U.S., transfer to other institutions and progress from one academic level to another. Effectively, the duration of their time in the U.S. is dictated by the duration of their academic programs.
The new proposed rule planned for next September would replace the authorized period of stay from “duration of status” to a fixed maximum term for certain nonimmigrant visa holders, including holders of F-1 student visas. The notice published Wednesday does not specify what the maximum period of stay for student visa holders would be, but it does say that there would be options for extensions in each applicable visa category.
“The failure to provide certain categories of nonimmigrants with specific dates for their authorized periods of stay can cause confusion over how long they may lawfully remain in the United States and has complicated the efforts to reduce overstay rates for nonimmigrant students,” a statement justifying the planned rule says. “The clarity created by date-certain admissions will help reduce the overstay rate.”
Jill Welch, the deputy executive director for public policy at NAFSA: Association of International Educators, issued a statement describing the proposed change as a break with decades of precedent.
"For decades, international students and scholars have been granted immigration status known as 'duration of status,' or 'D/S' that lasts for the period of time they are engaging in their studies and practical training. They are carefully screened, vetted, and monitored through the U.S. Department of Homeland Security’s Student and Exchange Visitor Information System (SEVIS). Maintaining this policy is necessary because the time for study or research can fluctuate given the changing goals and actions of the student or scholar. We are in a global competition for talent, and we need to ensure our policies are welcoming," Welch said.
She added, “As universities and colleges across the country work to welcome highly valued, hardworking international students and scholars to our campuses and communities, their efforts are being undermined by policies and regulations that further close our doors and pull up America’s welcome mat.”
The Trump administration has pursued a number of regulatory and subregulatory changes that are in various ways shaping the landscape for international education in the U.S. Among the most significant was a recent change in determining how international students admitted into the U.S. for duration of status will be found to accrue "unlawful presence," a determination that could subject them to future five- or 10-year bars on re-entering the country. Final policy guidance issued in August holds that unlawful presence will begin accruing the day after a student stops pursuing a course of study or otherwise violates his or her immigration status, rather than -- as was the case under the previous policy -- the day after the Homeland Security department issues a formal finding of a violation in the course of adjudicating a request for another immigration benefit or the day after a judge issues an order of deportation.
Stephen Yale-Loehr, a professor of immigration law at Cornell University, cautioned that the planned rule on duration of visas may never come to fruition. "Historically, there are lots of items on the semiannual regulatory agenda that never even make it into a proposed rule," he said. "If it happens, it’ll happen slowly. They’ll have to come out with a proposed rule and then ask for comments and then they have to look at those comments before they issue a final rule, and the final rule could be subject to challenge by the courts. No one needs to worry about this immediately."
"Having said that, if a rule like this does take effect there are pros and cons," Yale-Loehr continued. "It would remove some flexibility for people who may take longer than anticipated to finish their degrees. On the other hand, the unlawful presence guidance that came out in August creates a lot of uncertainty for foreign students because of the fact that right now they don’t have a fixed time limit, so they may be deemed after the fact to have been here unlawfully. Having a fixed duration would at least give a bright line for measuring when unlawful presence would start."