The administration justified the regulation in part on national security concerns.
Admitting students only for a fixed period of time and requiring them to apply for extensions would allow authorities additional opportunities for vetting and oversight. “Amending the relevant regulations is critical in improving program oversight mechanisms, preventing foreign adversaries from exploiting the country’s education environment, and properly enforcing and strengthening U.S. immigration laws,” Ken Cuccinelli, the acting deputy homeland security secretary, said in a statement
But Rachel Banks, senior director of public policy at NAFSA: Association of International Educators, said that the government was trying to “insert itself into academic issues” by assuming the discretion to determine whether students have legitimate academic reasons to extend their stay. (Here’s NAFSA’s response
to the rule.)
On Twitter, I asked for your pressing questions and concerns about the proposed regulation,
and Banks and other policy and legal experts were generous in helping me break down some of the implications. I got dozens and dozens of queries, and here are answers to some of the most often asked.
How would the proposed rule affect current international students?
The proposed rule essentially starts the clock on current students, allowing them to stay in the U.S. until the end date of their programs, not to exceed four years from the effective date of the regulation. One wrinkle: Students who travel outside the country during the transition period would then be subject to the new fixed-term admission rule, including the more-restrictive two-year provisions.
It typically takes more than four years to earn a Ph.D. Are doctoral students exempt from the rule?
Doctoral students would be subject to the four-year restriction and would have to apply to the Department of Homeland Security for an extension of stay. The same is true for students in bachelor’s degree programs, which often take more than four years to complete
. Extensions would be granted at the department’s discretion, based on academic, medical, and other grounds, and denials may not be appealed.
How would the provisions apply to transfer students or those moving from one educational level to another?
The proposal would limit the number of times a student could switch to another program at the same educational level. Any student who has completed a program at one educational level would be allowed to change to another program at the same educational level no more than two additional times. It also would restrict “reverse matriculation,” that is, moving to a program at a lower educational level. The rule wouldn’t affect students pursuing higher degrees.
What does the rule mean for OPT?
The most popular question! If students remain in the U.S. beyond the four-year window to take part in optional practical training, the popular work program for international graduates, then they would have to apply for an extension to stay. The same is true for STEM OPT. Given that OPT typically lasts for one to three years, it seems likely that a large share of students would require extensions to participate.
Under the proposed rule, students would be prohibited from working while the extension application is pending. This provision alarms experts who point out that DHS already has a backlog for issuing OPT work authorizations.
However, international students who have employment authorizations already filed and pending on the rule’s effective date would not have to file for an extension or refile their applications.
Will this rule be implemented?
If only I had a crystal ball! The proposed rule was released just weeks before the presidential election, and the 30-day comment period will close with only days to spare. Government officials will then have to review the comments before finalizing the rule. A few years ago, when the Obama administration proposed changes to OPT, it had to ask for a several-month extension
in a related court case in order to process the more than 50,000 comments submitted. And comments can lead officials to modify or amend regulatory proposals, although there’s no guarantee.
That said, regulatory actions don’t require congressional action, and executive-branch officials can move on their own timeline. Still, if President Trump loses and if the rule isn’t implemented by the January inauguration, it seems unlikely a Biden administration would pursue it.
Have additional questions or concerns about the regulation? Send them to me at firstname.lastname@example.org.