The Trump administration has proposed a new regulation that would significantly change how international students are treated in the United States. Critics believe the rule will discourage international students from coming to America and rests on questionable assumptions and shaky data. (See here.)
To better understand the proposed rule, and its impact on students and universities, I interviewed Dan Berger, a partner at the immigration law firm of Curran, Berger & Kludt, who specializes in issues affecting international education.
Stuart Anderson: Will the proposed regulation affect currently enrolled international students?
Dan Berger: Yes. Overall, the proposed rule moves from “duration of status” – a flexible concept that allows students to remain in the United States while making “normal progress” in an academic program – to a new policy that imposes an artificial fixed end date. The proposed regulation has a complicated transition setup that students and their universities need to understand.
Current students can stay in the United States until their “program end date” listed on their I-20 form. However, a student who leaves the United States will lose this transition status and must follow every part of the new policy. They will have to file additional applications to extend their program and get work authorization, with extra cost, delay and uncertainty.
The proposed rule flips the assumption about how students are treated. The current rule allows opportunities to change majors, career plans, etc. and stay in school while genuinely studying. The proposed rule is enforcement-oriented. The only basis to request time are “compelling academic reasons,” a medical condition, or a natural disaster or other major event. “Compelling academic reasons” are not clearly defined, which means students cannot count on getting an extension. Students may apply and find out months later that they cannot stay even if the school supports the extension.
DHS asserts it is trying to weed out students who are progressing slowly in their programs. For longer programs, a four-year maximum stay may not be long enough. For example, Ph.D. students will have four years from when the rule is published, and at the end of those four years will need to apply for an extension to continue since most Ph.D.’s take five or more years.
Anderson: How would the proposed rule affect a student applying for Optional Practical Training (OPT) or STEM (science, technology, engineering and math) OPT?
Berger: Currently, Optional Practical Training involves one application and one fee. For most students, the proposed rule would require two application forms, each with a separate fee, an extension of status and a request for a work card. This increases the cost and the chance of delay. As an example, another immigration category, the H-4, requires two forms and is quite slow (from 6 to 12 months or even longer).
The proposed rule allows students to apply for OPT 120 days before graduation (it is 90 days now), which may help a bit with the delays. But the rule narrows the window to apply for OPT after graduation from 60 to 30 days. That gives students less flexibility to plan the start of OPT based on how their job search is going.
Also, it is unclear whether employers hoping to hire international students will choose to wait for the OPT process to be complete. U.S. employers will lose a valuable, talented pool of international students if it becomes even more difficult to hire them.
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