Biden rolls back Trump’s fixed time visa for students, foreign media

Proposed rule would have required F, J and I visa holders to apply for an extension of stay or depart

Biden administration is rolling back a Trump era proposal for fixed time visas for non-immigrant academic students, exchange visitors, and representatives of foreign information media.

The US Department of Homeland Security (DHS) announced Tuesday it is withdrawing a notice of proposed rule making (NPRMI published on Sept. 25, 2020 to revise DHS regulations governing the length of stay for F, J, and certain I non-immigrants.

The proposed rule sought to eliminate the duration of status admission period for F, J and certain I non-immigrants and replace it with a fixed time period.

Non-immigrants seeking to remain in the United States beyond their fixed period of admission would have been required to apply for an extension of stay directly with US Citizenship and Immigration Services (USCIS) or to depart the country and apply for admission with US Customs and Border Protection at a port of entry.

Read: Those hit by Trump ban may reapply for H-1B, other work visas (April 2, 2021)

In a notice published in the Federal register on July 6, the DHS said that it had received more than 32,000 comments during the 30-day public comment period with more than 99 per cent of commenters opposing the proposed rule with many specifically requesting that DHS withdraw it.

The commenters who opposed the rule argued that it discriminates against certain groups of people based on their nationality, DHS said.

They also argued that it would significantly burden the foreign students, exchange scholars, foreign media representatives, and US employers by requiring the extension of stays in order to continue with their program of study or work.

Commenters additionally noted the proposed rule would impose exorbitant costs and burdens on foreign students, scholars, and media representatives due to the direct cost of the extension of stay application fee, as well as the lost opportunity cost of not being able to begin their work on time if the extension were not adjudicated by the government in a timely fashion.

Commentators argued that US employers would be similarly burdened by the proposed changes as many non-citizens may not be able to apply for an extension of stay or have it approved in a timely fashion thereby delaying the possible start dates of employees and/or cause them to lose potential job candidates.

Finally, commenters suggested that the breadth of the changes in the proposed rule are more than what is necessary to protect the integrity of non-immigrant programs.

Read: Biden lets Trump era H-1B visa ban expire (April 1, 2021)

DHS noted that on Feb. 2, 2021, President Joe Biden issued Executive Order 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” It instructs the Secretary of Homeland Security to identify barriers that impede access to immigration benefits.

Having reviewed the public comments received in response to the rule making proposal in light of Biden’s directive, DHS said, it “believes some of the comments may be justified and is concerned that the changes proposed unnecessarily impede access to immigration benefits.”

However, DHS said it still supports the goals of the proposed rule to protect the integrity of programs that admit non-immigrants in the F, J, and I classifications but not in a way that conflicts with Executive Order 14012.

DHS said it will analyze the entirety of the NPRM in the context of Biden’s directive to determine what changes may be appropriate and consistent with DHS’s needs, policies, and applicable law.

As such, DHS may engage in a future rulemaking to protect the integrity of programs that admit non-immigrants in the F, J, and I classifications in a manner consistent with Biden’s Executive Order.

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