D/S Abolition Final Rule, Litigation Possibilities and University Responses
On July 17th, the U.S. Department of Homeland Security published a final rule in the Federal Register that will set a fixed period of stay for students, exchange visitors, and foreign media representatives. The expected effective date is September 15th. What's important now is whether it will go into effect as planned, whether it will remain in place if litigation is initiated, and what universities and students need to prepare.
On this page, we have explained several times the possibility of abolishing D/S and implementing the new semester in September. This is not a sudden policy. It became the final rule this year, following the first attempt in 2020 and the proposed regulations in 2025. However, whether it is implemented as planned and whether it lasts a long time are separate issues.
1. The duration of stay for all current students will not change to four years immediately.
“The final rule changes the authorized period of stay in the U.S. recorded on the I-94, not the visa stamp's expiration date.”
It is important to accurately understand the ‘four-year visa limit" in the article title. What is changing is not the visa stamp in your passport, but the expiration date of your stay on your I-94 admission record. D/S (Duration of Status) is a status that continues without a separate expiration date as long as you are actively participating in school or an approved program. The new regulation will change this to require a date. F and J status (students and exchange visitors) are allowed until the program end date on the I-20 or DS-2019, but the maximum period allowed per entry is four years. This does not mean that four years is the limit for the entire student status. If more time is needed, you must apply for an extension within the U.S. or exit and re-enter.
It is not the case that all I-94s for students and exchange visitors currently staying in the U.S. on D/S will change to a 4-year expiration date on September 15th. Existing students will be subject to separate criteria until the earlier of their I-20/DS-2019 expiration date, OPT work authorization expiration date, or September 15, 2030. However, if you leave the U.S. after September 15th and re-enter, you will receive a new I-94 with the date noted. Even for students in the same program, their schedule may vary depending on travel and document expiration dates.
It is not the case that classes are immediately suspended if you are unable to complete your studies by the set date. F-1 students who have applied for a stay extension before expiration with their school's recommendation can continue their regular studies while their application is being reviewed. However, this will incur fees and fingerprinting costs, and USCIS will decide on the approval. For Optional Practical Training (OPT) after graduation and STEM OPT, which is an extended practical training for science and engineering, you must also check the I-94 expiration date. The grace period for departure after graduation for those subject to new regulations is reduced from 60 days to 30 days.
2. Reasons why it's likely to be implemented even if litigation is expected
“The Immigration and Nationality Act grants the Secretary of Homeland Security the authority to prescribe the period of admission and conditions for nonimmigrants.”
This regulation is much closer to being implemented than the one in 2020. The proposed rule at that time was withdrawn in 2021 before becoming a final rule. This time, there is a 553-page final rule, and they have responded to approximately 22,000 comments. The Department of Homeland Security has preemptively addressed expected legal challenges, such as claims of lack of authority or ignoring existing academic plans. They also stated that even if some parts are invalidated, the rest will remain in effect.
The government has clear legal grounds. Immigration and Nationality Act Section 214 allows the Department of Homeland Security to set the duration and conditions of stay for non-immigrants. Granting existing D/S students up to four years to comply with the new regulations also appears to be a measure to reduce vulnerability to challenges in lawsuits claiming that ‘plans based on existing systems were ignored." As the current administration is pursuing this as a major immigration policy, it is unlikely that its implementation will be delayed unless a court intervenes.
As these regulations will also undergo review by Congress according to the law, the possibility of a different effective date remains. However, the bigger variable for now is whether the courts will halt enforcement. Even if the administration changes course in the future, it cannot simply withdraw them as it did in 2021. Since they are already final rules, it will have to go through the formal amendment process again. This is why they could last longer than the attempt in 2020.
3. However, it is also difficult to conclude that the regulations will remain in place for a long time.
“The Association of International Educators NAFSA has stated that it will actively explore all means to challenge this regulation.”
The possibility of a lawsuit is quite high. Universities, students, and organizations operating exchange programs could argue to the court about additional costs, decreased enrollment, disruption of research, and alterations to already established academic plans. The key issue will be whether the government has sufficiently explained why it chose these regulations. It's expected there will be disputes over the necessity of requiring separate immigration reviews for everyone, given the existence of the SEVIS system. Whether less burdensome alternatives were sufficiently considered is also a point of contention. The fact that people only had 32 days to submit comments could also be problematic.
Even if a lawsuit is filed, the regulations do not automatically stop. The court must issue a separate order for enforcement to cease. Appeals can follow the first ruling, so it may take time to reach a final conclusion. Therefore, the situation can change up until the day before September 15th, but without a court order or separate action, the regulations will go into effect as scheduled.
The part that limits graduate students' changes in major and school transfers, rather than the four-year stay period itself, may be more strongly contested in court. This is because the authority to set the period of stay and the authority to limit a university's academic decisions are not the same issue. The government will likely argue that they are setting the conditions for student status. The opposing side could argue that they are blocking the choices of all students due to the misconduct of a few. However, since the Department of Homeland Security has already addressed potential counterarguments, it is unlikely that the entire regulation will be suspended before it takes effect if a lawsuit is filed. The court could suspend only parts of it and allow the rest to be implemented.
If the lawsuit is filed before the regulations take effect, the plaintiffs are likely to request a halt to their enforcement until a final judgment. The court will consider not only the likelihood of the plaintiffs winning but also whether irreparable harm would occur if the regulations were to be enforced in September, and whether halting the regulations would be more beneficial to society as a whole. Universities could cite the costs of new personnel and IT system work, while students could point to disruptions in their academic, research, and employment schedules. The government might argue for national security and immigration control authority, and a preparation period of up to four years. Even if the court halts restrictions on changing majors or transferring schools, the four-year stay period itself could still be maintained.
4. Universities' backlash appears in administrative practice before statements.
“The Department of Homeland Security also estimated the annual cost of this regulation to be over $440 million.”
Immediately after the announcement, universities opted to analyze the regulations and prepare informational sessions instead of drawing conclusions. UC Davis announced that they would prepare a Q&A document and an online briefing, stating that the impact could be felt throughout the entire university. Case Western Reserve University announced that the current system would remain in place until September 15th and that there were separate criteria for existing students. NAFSA recommended that universities re-examine the actual time required for each degree, revise admission guides and computer systems, and identify students who need to apply for extensions early.
This burden doesn't fall on the international student office alone. Doctoral, medical, clinical, and research programs cannot easily set a graduation date four years in advance. Hospitals with J-1 physicians and researchers must manage training schedules and immigration reviews together. Foreign journalists have a maximum stay of 240 days and frequently need extensions. Academic decisions to change majors or research topics also affect immigration status. Admissions, academic affairs, research, human resources, and legal departments must respond collaboratively.
It's also a problem whether the immigration service can process the increasing number of applications in a timely manner. Many tasks that previously ended with the school reporting to SEVIS will now require an application to the immigration service. If applications surge, processing times may be delayed and requests for additional documents may increase. School schedules and immigration service schedules may not align. Even if students can continue their studies during the review process, the burden of waiting for the results will remain. Universities should not just wait for the lawsuit's outcome but should prepare the necessary personnel and guidance systems for the September implementation.
Closing remarks
For now, it's safest to prepare with the assumption that it will take effect on September 15th. However, we cannot be certain that this regulation will remain unchanged for long. While the current administration will actively defend the regulation, the courts could order a halt to some parts or demand further explanation from the government. Even if the next administration decides to change the policy, they will still need to go through the formal regulatory change process.
There are also alternatives that people often overlook. If a student finds an employer that matches their education and experience, they can begin the employment-based immigration process within the U.S. However, merely filing the employer's PERM (labor certification) process or I-140 petition does not extend student status or create a new legal status. The crucial point is when the visa bulletin opens and they can actually file the I-485 (Application to Register Permanent Residence or Adjust Status). For eligible students, starting the process early to file the I-485 before their student status expires is a practical way to prepare for immigration status issues.
Students and families should check three things. First, they should see if their I-94 has D/S or a specific date. Second, they should organize their I-20/DS-2019 end date, expected graduation date, and OPT/CPT schedule in one place. Finally, any international travel or changes to school/major around September 15th should be discussed with the school's international student advisor before making a decision. Relying solely on litigation or rushing to depart due to anxiety should both be avoided.
Disclaimer: This column is for general information purposes only and is not legal advice for your specific case. You should always consult with an attorney who specializes in immigration law for your individual case.
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