Comments to DHS on Student and Exchange Visitor Visas

Monday, October 26, 2020 - 10:15am

The Honorable Sharon Hageman
Acting Regulatory Unit Chief
Office of Policy and Planning
U.S. Immigration and Customs Enforcement
Department of Homeland Security
500 12th Street, SW
Washington, D.C. 20536

Via electronic submission: www.regulations.gov

RE: Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure
for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of
Foreign Information Media
85 Fed. Reg. 6 05 26 (Sept ember 25 , 20 20 )
RIN 1 653-AA7 8

Dear Acting Chief Hageman:

The U.S. Chamber of Commerce submits the following comments regarding the
proposed rule referenced above. The Chamber greatly appreciates that the Department of
Homeland Security ( “DHS” or “the Department”) and U.S. Immigration and Customs
Enforcement (“ICE ”) are concerned about the integrity of the nation’s legal immigration system.
Combatting immigration fraud and national security risks are legitimate government interests.
However, this proposal is a vastly suboptimal means with which to meet those goals.
Furthermore, the business community is very concer ned about the broad changes implicat ions of
the provisions contained within the proposal, as many companies fear the program changes could
seriously inhibit their ability to attract the top talent to help the m compete in the global economy.

Specifically, our members have expressed concerns about the changes to the F Student
and J Exchange Visitor programs that would make it much more difficult for them to utilize
the se programs to meet their future workforce needs. The creation of arbit rary time limits for
duration of stay for international students and exchange program participants, along with a very
complicated process for individuals to extend their status once they’re in the U.S., will make it
very difficult for companies across a host of industries to meet their workforce needs through
these programs moving forward. Moreover, the perception created by these proposed changes
among future international students and exchange visitors is that coming to the U.S. (and staying
here ) is going to become much more difficult than it used to be. If these types of individuals
become much less inclin ed to come and pursue opportunities in the U.S., many companies will see the talent pipeline for their critical workers constrict, which will inhibit the ability of their
businesses to innovate, expand, and create jobs.

Many companies across various industries constantly compet e for the best talent in the
world to help their businesses grow, and foreign students and excha nge visitors are a critical
source of talent for their businesses. Given the pressures they face in compet ing for talent in the
global economy, our nation needs to have policies t hat help attract talent to our nation.
Unfortunately, this proposal, in many ways, acts like a talent repellent due to the uncertainty it
creates for b usinesses and workers alike . We strongly implore DHS to withdraw this proposal,
as the wholesale elimination of the Duration of Status (hereinafter “D/S”) framework for
adjud icating these types of nonimmigrant visa petitions . Our comments focus on the changes that
have been suggested for the F and J nonimmigrant visa classifications in this proposal.

THE PROPOSAL DOES NOT PROPERLY ACCOUNT FOR THE BUSINESS
COMMUNITY’S CONCERNS

DHS seeks to impose a fixed period of admission for individuals entering the U.S with an
F student visa or a J exchange visitor visa. The period of admission allowed for these individuals
under this new proposal would be either two or four years, dependent upon several factors
considered in the proposal .1 After these initial grants of status, the individual would need to file
for an Extension of Stay (EOS) to maintain their ability to stay in th e country and either continue
in their academic/exchange program or pursue employment with U.S. companies.

Under the DHS proposal, an individual seeking status as a nonimmigrant in the F or J
visa classification s is a llowed to stay for maximum period of four years , with a significant
portion of individuals in the F visa classification only being eligible to receive two years of
lawful status in said classification. Notably, DHS admits that this proposal “may adversely
affect U.S. competitiveness in the international market for nonimmigrant student enrollment and
exchange visitor participation,” as these other programs would be less restrictive than what our
progra ms would become if these new changes were implemented in a final rule. The Chamber
strongly urges DHS to withdraw this rule, as it would hinder the ability of many companies to
compete for top talent in a host of fields .

Business Concerns with Proposal’s Impact on Academic Programs for F-1 Students

Several technology companies and manufacturers are particularly concerned about this
proposal’s impact on the talent pipeline for their U.S.-based research and development
operations. These companies are specifically concerned about the rule’s impact on the
individuals they employ who possess an F student visa , were educated at a U.S. college or
university, and are employed pursuant to the Optional Practical Training (OPT) stat us they
obtained following their graduation .

DHS’ view on the American higher education system, which is inferred by the structure
of this proposal, is overly simplified. The changes sought by ICE are based upon the misguided
assumption that th e allocation of status in two-year or four-year increments will be sufficiently
workable for stakeholders since most academic pro grams offered in the U.S. are two or four -
years in duration. Unfortunately, t hese fixed perio ds of status do not match the realit ies of higher
education in America .

According to the National Center for Education Statistics (NCES), the average time to
complete a bachelor’s degree for international students is 56.3 months (or 4.69 years). The
NCES data on undergraduate education also shows that 56% of international students seeking
bachelor’s degrees earn their degrees within a four -year perio d, but the data shows that a
significant portion of international undergraduate students would not be able to complete their
degrees within a four -year time period and would need to complete the new extension of stay
request even if they weren’t subject to the two -year limitation. This is also true for many students
who are drawn to U.S. institutions of higher education because the college/university offers a
multiple degree program ( e.g. a B.S./M.B.A program) that provides multiple credentials, but the
duration of these programs is a minimum of 5 years in duration. Further more , nearly all students
pursuing optional practical training (OPT) would be forced to complete an extension of stay
request to be able to stay in the U.S. and continue their training in their field of study with a U.S.
employer.

The disconnect between this proposal’s structure and higher education realities is even
more pronounced, and more antithetical to the interests of the business community regarding
student s pursuing a graduate level degree. Masters and d octoral degree programs can be very
lengthy , and individuals who seek the se degrees in the U.S. are drawn here because upon
graduation, they begin their careers at U.S. companies. These students are highly sought after
once they finish their graduate leve ls studies from U.S. universities, and they help alleviate
workforce challenges, particularly in Science, Technology, Engineering, and Mathematics
(STEM) fields. Companies in various industries, including chemical manufacturers , technology
companies, semic onductor producers, and pharmaceutical companies, among many others, rely
heavily upon these individuals with graduate degrees to meet their critical workforce needs.

The anecdotal evidence provided to the Chamber from both a prominent technology
company and a chemical manufacturer indicate that the presence of OPT recipients in the U.S. is
critical to their companies meeting their workforce, particularly with respect to their R&D
operations . Both companies were very clear that most of their respective employees performing these critical research functions were hired initially as OPT recipients. Many of these individuals have since changed their status to another nonimmigrant classification or now possess a green
card that was sponsored for them by their employer, but if not for the OPT program, these
companies would not have been able to innovate and grow in the manner in which th ey did.
Academic s tudies tend to bear out this trend as well, as data from 2018 shows that temporary
visa ho lders earned the majority of doctorates awarded in engineering (57%) and in mathematics
and computer sciences (55%) .6 Given the important role that these individuals play for
American companies and the American economy as a whole, companies are very conce rned that
these onerous compliance burdens being foisted upon them will hinder their ability to meet their
workfo rce needs.

Business Concerns with Proposal’s Impact on J -1 Exchange Program Participants

Healthcare industry stakeholders are very concerned about the adverse impact th ese fixed
admission periods will have on their ability to continue providing healthcare to patients .
According to leading medical associations , 750 teaching hospitals across the United States
employ more than 12,000 foreign national physicians participating in the Exchange Visitor
Program in J -1 visa status. These J -1 trainees provide essential medical care to many American
patients across the country. Forcing this c hange to the D/S model for J -1 medical trainees has the
potential to disrupt the delivery of health care.

Given DHS’ proposed framework of only allowing a maximum of two or four years of
status for J -1 Exchange Visitors,  many J -1 Foreign Medical Graduates will likely have to file for
extensions of stay during the pendency of their U.S. training. T hese residency/specialization
programs can last up to seven years; if a medical trainee is subject to the two -year limitation on
authorized stay and their specialization training is seven years in dura tion, they will need to
apply for status on four separate occasions, quadrupling the current compliance burden faced by
J-1 medical trainees today and providing several opportunities at which these workers could be
denied an extension.

The additional ap plications are not simply a drain on the resources of the J -1 sponsors
and the foreign medical graduates. These are potential chokepoints at which a J -1 medical
trainee could lose their ability to continue their training in the U.S. This increases the risk that
the pursuit of their medical training in the U.S. might not end well for them, but those risks are
shared by the health care providers at teachin g hospitals across the country that employ these
individuals. In the event the medical trainee losses status and must leave the U.S., that causes a
serious disruption in the healthcare provider’s workforce. To that end, the health care providers
who stan d to suffer the most if there is a disruption caused by the ir medical trainee s’ inability to extend their stay in the U.S. will be those providers located in medically underserved areas or in critical access points in large cities.

Another problem associ ated with the administration of foreign medical graduate training
programs in the U.S. is that the critical elements of the DHS proposal are in conflict with
existing State Department Regulations. These State Department regulations make clear that the
Sta te Department facilitates the exchange programs for foreign medical graduates seeking to
pursue graduate medical education or training at accredited schools of medicine o r scientific
institutions. In addition, these regulations establish that the Secreta ry of State shall determine
the duration of the alien physician’s participation in the program at the time of his/her entry into
the United States , and that said duration may generally be limited to a maximum period of 7
years. 

Nothing in these State Department regulations would indicate that DHS would have a
role in making these determinations for these programs. This is not surprising, as the statutory
text in the Immigration and Nationality Act sets forth that the maximum dur ation of these
medical programs should general ly be no greater than seven year s and that the State Department
is in charge of determining the duration of a given program for foreign medical graduates. The
statutory te xt clarifies Congress’ intent to have the State Department manage and regulate the
primary components of J -1 programs for foreign medical graduates. Absent Congressional action
amending these statutory provisions , the authority of DHS to effectuate its proposed changes
remains question able .

DHS Should Utilize SEVIS to Promote Program Integrity and National Interests

In the proposal’s preamble, DHS stated that doing away with the D/S admission regime
and replacing it with “a fixed period of authorized stay is consistent with most other
nonimmigrant categories .”While this would certainly treat F and J visa holders similarly to the
beneficiaries of other nonimmigrant visa classifications, it is extremely important to note that the
F and J visa classifications are very different from “most other nonimmigrant categories” in one
fundamental respect. F and J visa holders are tracked through the Student and Exchange Visitor
Information System (SEVIS) . SEVIS is operated by the Student and Exchange Visitor Program
(SEVP) under ICE. SEVP is responsible for ICE’s role in monitoring the activity of
international students under the F visa classification, while the Department of State’s Bureau of
Educational and Cultural Affairs (ECA) has responsibility for track ing exchange visitors in t he
U.S. Both Departments utilize SEVIS to perform these respective functions. 

International students and exchange visitors are the only nonimmigrants that are
continuously tracked and monitored while they are present in the country. Moreover, SEVIS is
an existing system that could be built upon by ICE and ECA to address the fraud and national
security concerns that DHS states are the driving forces behind this proposal. We urge DHS to
examine how the y can utilize SEVIS to achieve their stated goals instead of establishing
complicated policies and cumbersome procedures for individuals to retain their status in the U.S.
that will likely cause disruptions for various companies who will struggle to comply with these
news policies.

DHS justifies the ex pansion of a broad Extension of Stay framework in that it identified
“nearly 29,000 F -1 students who, since SEVIS was implemented in 2003, have spent more than
10 years in student status,” including students “who enrolled in programs at the same
educatio nal level as many as 12 times, as well as students who have completed graduate
programs followed by enrolling in undergraduate programs, including associate’s degrees.”
However, the fact that DHS has access to those data shows th at SEVIS can be an effective tool
against fraud . Rather than place all international student and exchange visitor nonimmigrants
into a USCIS EOS scheme that would unnecessarily burden universities , exchange programs,
businesse s, and workers , DHS should con sider bu ilding upon its analy sis of SEVIS data and
using its existing authority to further investigate the individuals and institutions it believes are
not acting within the bounds of the laws. The business community is not against improved
oversight per se, but improved oversight does not need to come at the cost of overturning a
longstanding policy that stakeholders ha d come to rely upon to meet critical workforce needs .

EXTENSION OF STAY PROCESS IS COMPLICATED, C UMBERSOME, AND WILL
INCREASE UNCERTAINTY AND DISRUPTION FOR EMPLOYERS

The Extension of Stay (EOS) process that DHS has propos ed raises several concerns and
potential challenges for F-1 and J -1 visa recipients and their employers . This proposal seeks to
curtail the authority of a Designated Scho ol Official (DSO) to extend an F -1 student’s sta y in the
U.S. , as well as the authority of a n exchange program sponsor’s Responsible Officer (RO) to
extend a J -1 exchange visitor’s presence in the country. This is accomplished by DHS separating
the proces s a DSO or an RO engages in to extend the length of a given academic/exchange
program from the process of extending the individual’s stay in the country . Current policy
provides much more flexibility to the university DSO or the exchange program’s RO to e xtend
the length of the program and, by extension, the ability for the F/J nonimmigrant to legally stay
in the country. U nder the new proposal , those responsibilities will be bifurcated and USCIS
would be given the responsibility of determining whether the nonimmigrant can continue to
remain in the U.S.

Businesses are very concerned that th is proposal would needlessly complicate the process
of ensuring that students and exchange visitors are abiding by the terms of their status . Similarly,
companies worry that this proce ss would create more possibilities for seemingly innocuous
errors to occur that would jeopardize the ability of individuals who have much to contribute to
American employers and the U.S. economy to continue to live, work, and thrive in the U.S.

One manner in which DHS complicates the process is in its rejection of the notion of an F
or J nonimmigrant making “normal progress” towards the conclusion of their program is a
principle upon which they want to operate these programs moving forward. DHS views this
“normal p rogress” concept a s undefined and inconsistently applied in practice. 16 To that end,
DHS utilizes this rationale to justify the creation of the EOS process where USCIS becomes the
ultimate arbiter of whether an internationa l student or an exchange visitor participant warrant s an
extension of their stay in the U.S. In short, the DSOs and ROs appear to now simply play an
advisory role in this process whereby they provide USCIS with a recommend ation as to whether
the individua l should be allowed to extend their stay in the U.S. and USCIS would be free to
approve or deny the extension petition .

Given USCIS’ precarious financial situation and processing backlogs, many companies
are worried that this additional step in the extension process, which will require a resource -
strapped agency to increase its workload to deal with these new EOS requests. The processing
of these EOS requests will likely be very time consuming and could cause many valuab le
wo rkers to fall out of status if USCIS cannot process all these requests in a timely fashion. The
operational disruption s that the untimely processing of these could cause would be best avoided
by the agency reverting to its D/S framework and building upon its capabilities in SEVIS to
better combat fraud and national security concerns.

Many companies are concerned by DHS’ desire for USCIS to have a more active role in
determining whether international students and exchange visitors can continue to purs ue their
course of study or their exchange program in the U.S . DSOs and ROs understand the specific
circumstances surrounding these nonimmigrants and the programs in which they are
participating . Allowing DHS to subsume this authority in the manner proscr ibed in this proposal
increases the likelihood that these workers could lose their ability to legally remain and work in
the U.S. USCIS adjudicators are not experts on academic program s or exchange visitor programs
and it will take time for adjudicators to adjust to these new requests and understand the eligibility
requirements for various types of application. This lack of certainty regarding the agency’s
expectations has many stakeholders nervous that the level of EOS denials will be very high.
This is yet another reason for DHS to withdraw this rule and revert to the D/S policy in
adjudicating petitions for F -1 and J -1 nonimmigrant visas.

The EOS Framework Must Include an Appeal Process for Stakeholders

The EOS process currently does not provide a meaningful appeal process for aggrieved
stakeholders who have been issued a denial on their extension request. The right to appeal is
permitted for several other USCIS benefit requests and it is unclear why DHS has not made that
an option for the EOS process. Relatedly, the denials section for both F and J nonimmigrants
requires individuals who have been denied and the authorized period of admission has expired ,
those nonimmigrants and their dependent family members all must leave the U.S. immediately. 
For companies that are relying upon OPT recipients for their crucial R&D efforts or J-1 foreign
medical graduates performing their residency in the U.S., the sudden disruption caused by this
could be devastating for a company’s operations. While the Chamber would prefer that this rule
be withdrawn with no EOS framework for stakeholders t o be concerned with, but if DHS insists
on moving forward with some of form of extension procedures for these programs, the agency
must include some form of appeal process to ensure that companies and their workers don’t have
the rug pulled out from undern eath them.

CONCLUSION

Businesses across multiple sectors of the U.S. economy are concerned about the potential
disruption to their operations that this proposal would cause . We urge DHS to withdraw this rule
and maintain its D uration of Status framework for adjudicating these types of petitions , as that
would provide much needed certainty for companies that utilize these programs to meet their
critical workforce needs.

Thank you for considering our views.

Sincerely,

Jonathan Baselice
Executive Director, Immigration Policy
U.S. Chamber of Commerce