What’s Happening
Removal of Duration of Status Classification for F, J, and I visa holders
The Department of Homeland Security (DHS) has released a proposed rule that would eliminate the "duration of status" (D/S) admission framework for F students, J exchange visitors, and I media representatives. Instead, DHS would implement a fixed period of stay, aligning these categories more closely with the structure applied to other nonimmigrant visa types.
While DHS indicates the purpose of the new rule is to limit the amount of time that visa holders are allowed to remain in the United States without additional screening and vetting, this change would significantly alter how international students and exchange visitors maintain lawful presence and work authorization in the United States.
Removal of Deference to Prior USCIS Approvals
Another critical element in the proposed rule is the removal of deference to prior USCIS approvals for Form I‑129 petitions, even when they involve the same parties and facts. Under the H-1B modernization rule, which took effect in January shortly before the change in administration, USCIS typically deferred to earlier decisions in H‑1B (and other I‑129-based) extensions, so long as the underlying facts remained materially unchanged. Under the new rule, USCIS would no longer be required to give deference to prior approvals, which could result in inconsistent adjudication outcomes.
What You Need to Know
The proposed rule’s removal of D/S admissions, for F-1 students in particular, will result in significant changes to:
Fixed I‑94 Admission Dates: Nonimmigrants in F‑1, J‑1, and I classifications would be admitted for a defined period (generally up to four years) based on their program length, with possible shorter admission periods depending on country of origin or type of program.
Shortened Grace Periods: F‑1 students would have only 30 days (reduced from 60) after completing their program or OPT to depart the U.S. or seek another legal status.
Extension of Stay Process (EOS): To remain in status beyond their initial admission period, individuals would need to file a formal extension request with USCIS and complete biometrics, rather than relying on updated school documentation alone to extend their status in the U.S.
Unlawful Presence Starts Immediately Upon Expiration: Once a visa holder's I‑94 expires, unlawful presence would begin to accrue immediately, with 180+ of unlawful presence leading to certain inadmissibility bars.
H-1B Cap Gap Significantly Limited: The proposed rule ties a student’s work authorization to the expiration of their Form I-94, which could impact H-1B cap-gap eligibility. While the new rule doesn’t mention Cap Gap specifically, it’s possible that an automatic extension of F-1 status through October 1 would not be possible where the student’s F-1 status expires before October 1. Thus, to avoid a lapse in employment authorization it may be necessary for F-1 students to file for an extension of their F-1 status in addition to an H-1B change of status to avoid a lapse in work authorization of several months.
What F-1 OPT Employers Need to Know
If the rule goes into effect as currently written:
Work Authorization Tied to I‑94 End Dates - Employers would be required to monitor F-1 employees’ I‑94 expiration dates carefully. Work authorization under OPT would no longer continue automatically beyond this date without an approved extension of status.
Tighter Filing Deadlines for Extensions - OPT participants and their employers will need to ensure that extension and employment authorization applications are filed well before the I‑94 end date. Delays could result in a loss of status and the need to stop work immediately.
Cap-Gap Timing May Shift - The new rule may reduce the cap-gap employment extension window, potentially ending it on April 1 instead of October 1. This could leave a gap between the end of OPT and the start of H‑1B employment unless the petition is approved more quickly.
Increased Filing and Processing Delays - The change is expected to generate hundreds of thousands of new USCIS filings annually, which may result in longer processing times. Employers should prepare for potential delays and increased documentation requirements.
Country-Specific Limitations - Students from countries with high overstay rates or those enrolled in non-accredited programs may be granted only two-year admission periods, requiring even earlier planning and extension filings.
Recommended Employer Actions
While the rule is not yet in effect, DHS may make changes in response to public comments it receives, and the implementation date has not yet been confirmed, employers should:
Audit Your F‑1 OPT Workforce - Identify employees who may be reaching the end of their current program or OPT period and assess whether they’ll need an extension.
Implement I‑94 Tracking - Establish a system to monitor I‑94 expiration dates and ensure any necessary extension or change-of-status applications are filed on time.
Coordinate with DSOs and Legal Counsel - Close coordination between the employee, their school’s designated school official (DSO), and immigration counsel will be essential to maintain valid status.
Prepare for Contingency Scenarios - Have managers prepare in advance in case employees must pause work while awaiting extension approvals.
What Happens Next?
The proposed rule is currently open for public comment for 30 days. After the comment period closes, DHS will review feedback before finalizing the rule. As noted, the implementation date has not yet been confirmed, but employers should begin planning for compliance now, as changes could take effect in the coming months.
D&S is actively monitoring this rule and will provide updates as more information becomes available.