The final rule issued recently by the Department of Homeland Security (DHS) has replaced the long-standing ‘duration of status’ (D/S) regime (whereby students could stay in the US as long as they were studying) with fixed periods of admission of a maximum of four years. Post the expiry of this fixed period, visa extensions need to be sought. The final rule will come into effect from Sept 15. Currently international students, studying in the US are covered by the D/S regime. Immigration attorneys state that such students who are visiting India or are holiday in another country must return to the US before Sept 15, if they want to benefit from the transition provisions. Following publication of the final rules, DHS has issued a fact sheet and FAQs. The agency has clarified that students already in the US under D/S on the rule’s effective date can continue to remain until their programme end date on their Form I-20 or the end of approved OPT/STEM OPT. However, this is subject to an overall cap of four years from the effective date – (it cannot exceed Nov 14, 2030, which is four years plus a 60-day departure period). Immigration attorneys caution that this protection is available only to students who are physically present in the US on Sept 15.New York-based immigration attorney Karin Wolman said, “An F-1 visa holder who is currently outside the US must return by Sept 15 (preferably arrive on Sept 14 to accommodate flight delays) in order to be covered by the transition rules and be readmitted with a duration of status on their I-94 (which is the arrival and departure record).”Rajiv S. Khanna, managing attorney at Immigration.com, echoed the advice. “A student admitted to the US on or before Sept 14 falls under the old duration-of-status framework. If that same student is physically present in the US and maintaining status on Sept 15, the transition provision lets them remain based on the programme end date on the Form I-20, subject to the four-year cap,” he said, adding that students entering on or after Sept 15 will instead receive a fixed ‘admit-until’ date on their I-94.“Be mindful that entering early secures this D/S position only until the first trip abroad after the effective date. The advantage is real, but it is fragile,”’ added Khanna.“The four-year transition period does not automatically give students four extra years in the US. It simply allows D/S to continue for up to four years, provided the student continues to maintain valid F-1 status. If the academic programme ends and the applicable grace period expires, the student falls out of status and begins accruing unlawful presence. In short, four years is a cap on D/S, not a guarantee of four years of authorized stay,” pointed out Cyrus D. Mehta, a New York based immigration attorney.The rule also has important implications for students already in the US who later travel outside the US. In this regard, DHS has stated that students who leave the US after the rule takes effect and subsequently return “may be admitted with a new fixed period of admission”, based on the programme end date on the Form I-20, capped at four years, along with a 30-day departure period.Form I-20 is the official document issued by a US educational institute that certifies a student has been admitted to a full-time academic programme and is eligible for an F-1 student visa. Under the new rule, the programme end date on the Form I-20 becomes even more significant because DHS says students admitted after Sept 15, will generally receive an I-94 authorizing them to remain until the programme end date shown on the I-20 (subject to a maximum of four years).“A student presently in the US and covered by the transition rules loses D/S and the 60-day grace period if they travel abroad any time after Sept 15. A student returning after the Christmas holidays, for instance, will receive a date-certain I-94 and only a 30-day grace period,” explained Wolman.Khanna described this as “a problem area for the unwary”. He said any student who departs and re-enters after the rule takes effect will be inspected under the new system, irrespective of the earlier D/S admission. ” The student does not lose F-1 status, but the open-ended D/S admission is replaced by a fixed date on the I-94,” he said.Mehta added that re-entry after Sept 15 could also reduce the post-study grace period from 60 days to 30 days. “If the student stays beyond the fixed admission period plus the 30 days, they would start accruing unlawful presence and could potentially trigger the 3- and 10-year re-entry bars,” he cautioned
