The Department of Homeland Security’s (DHS) final rule eliminating “duration of status” (D/S) for F-1 students and J-1 exchange visitors takes effect on Sept. 15, 2026. The rule will change how certain categories of nonimmigrants maintain lawful status in the United States.
Historically, F-1 and J-1 nonimmigrants admitted for D/S have been permitted to remain in the United States for the duration of their academic program or exchange activity, plus any applicable grace period, without a fixed expiration date on their Form I-94. Under the new rule, these nonimmigrants will instead be admitted for a fixed period of authorized stay. Those who require additional time to complete their program, transfer schools, begin a new program, or otherwise continue in F-1 or J-1 status will generally need to file Form I-539, Application to Extend/Change Nonimmigrant Status.
DHS has now issued transition guidance explaining how the new rule will apply to individuals who are already in the United States when it takes effect. While the guidance provides relief for some current students and exchange visitors, it also creates new planning considerations for individuals contemplating an EB-5 investment and adjustment of status.
Transition Relief for Current F-1 and J-1 Nonimmigrants
F-1 students and J-1 exchange visitors who are physically present in the United States and maintaining valid status on Sept. 15, 2026, generally may remain in the United States until the earlier of their current program end date or Sept. 15, 2030, four years after the rule’s effective date. F-1 students will continue to receive a 60-day grace period following completion of their program, while J-1 exchange visitors will continue to receive a 30-day grace period. Individuals covered by these transition provisions do not need to file Form I-539 simply to benefit from the transition period.
The transition protections, however, may be affected by international travel. An F-1 or J-1 nonimmigrant who departs the United States after Sept. 15, 2026, and is subsequently readmitted will enter under the new fixed-period admission framework. In addition, F-1 students generally will lose the benefit of the traditional 60-day grace period and instead receive a 30-day grace period following expiration of their authorized stay. Students contemplating an EB-5 should note that travel may affect both available transition benefits and future extension requirements.
Why This Matters for Prospective EB-5 Investors
The EB-5 Reform and Integrity Act permits many eligible F-1 students to file Form I-526E and Form I-485 concurrently while maintaining valid nonimmigrant status. Once a properly filed Form I-485 is pending, applicants generally enter a period of authorized stay and may apply for employment authorization and advance parole, allowing them to remain in the United States while USCIS adjudicates their adjustment application.
The importance of preserving eligibility to adjust status has become even more notable following USCIS’s May 2026 policy memorandum addressing I-485 adjustment of status adjudications. As previously discussed in a GT Alert, the memorandum emphasizes that adjustment of status is a discretionary benefit and reinforces that applicants must continue to satisfy all applicable eligibility requirements throughout the adjudication process. The memorandum also highlights that individuals who are not eligible to adjust status in the United States may need to pursue immigrant visa processing through a U.S. consulate abroad. For prospective EB-5 investors, preserving eligibility to file and maintain an adjustment application in the United States has therefore become an increasingly important strategic consideration.
Against this backdrop, the elimination of D/S introduces an additional planning challenge for F-1 and J-1 students pursuing EB-5. Prospective investors may need to account for two separate but interconnected timelines: the timing considerations associated with adjustment of status filings and the requirement to maintain valid nonimmigrant status until an adjustment application is filed.
The first timeline relates to immigrant intent. Some immigration practitioners consider the Department of State’s 90-day guidance when advising clients who entered the United States in a nonimmigrant classification and later decide to pursue adjustment of status. Although the guidance does not establish a statutory waiting period and is not binding on USCIS, it is frequently considered as part of an overall strategy to minimize questions regarding whether an applicant misrepresented their intent at the time of their most recent admission.
The second timeline concerns maintenance of lawful nonimmigrant status. Under the prior duration of status framework, F-1 and J-1 students generally did not need to monitor a fixed I-94 expiration date while determining the appropriate timing for filing an adjustment application. Beginning Sept. 15, 2026, however, F-1 and J-1 nonimmigrants will instead have a fixed period of authorized stay. As a result, students who strategically delay filing Form I-485 after admission may also need to confirm that their underlying F-1 or J-1 status remains valid throughout that period. Depending on the circumstances, maintaining eligibility to adjust status may require timely filing of Form I-539 to extend status or pursuing another available immigration strategy.
The expiration of nonimmigrant status may have consequences beyond the loss of the ability to remain in F-1 or J-1 status. Depending on the facts of the case, failure to maintain lawful status before filing Form I-485 may adversely affect eligibility to adjust status in the United States and might require the individual to pursue immigrant visa processing abroad instead. Accordingly, prospective EB-5 investors may wish to assess how the timing of an EB-5 investment, Form I-526E filing, adjustment filing, OPT or STEM OPT eligibility, travel plans, and maintenance of F-1 or J-1 fit within a coordinated immigration strategy.
Transition Relief for OPT and STEM OPT Applicants
DHS has also provided temporary relief for certain F-1 students applying for post-completion OPT and STEM OPT. Students who are present in the United States on Sept. 15, 2026; maintain valid F-1 status; and timely file Form I-765 for post-completion OPT or STEM OPT before March 18, 2027, generally will not be required to file Form I-539 solely because they are seeking OPT or STEM OPT benefits.
International travel after the rule’s effective date may change that analysis. Students who depart and reenter the United States after Sept. 15, 2026, may lose the benefit of this transition relief and might be required to file both Form I-539 and Form I-765. Students who are eligible to apply for OPT or STEM OPT before Sept. 15, 2026, or during the transition period before March 18, 2027, should consider filing as early as they are eligible to maximize the available transition benefits.
Planning Considerations for EB-5 Investors
The elimination of D/S represents a notable change for F-1 and J-1 students considering permanent residence through EB-5. While the transition rules provide relief for individuals already present in the United States, the new framework places a greater emphasis on proactive planning and monitoring of status expiration dates. Prospective EB-5 investors may wish to begin evaluating their immigration strategy prior to the expiration of their current period of authorized stay. Investors should consider whether they are eligible for concurrent filing of Form I-526E and Form I-485, whether additional time in F-1 status may be required, whether OPT or STEM OPT provides a bridge to maintain status, and whether international travel might affect their transition benefits or adjustment strategy.
Looking Ahead
For F-1 and J-1 students pursuing EB-5, the interaction between fixed periods of admission, adjustment filing strategy, immigrant intent considerations, OPT eligibility, and travel planning may require coordinated analysis. Careful planning before graduation, before international travel, and before initiating the EB-5 process may help preserve adjustment of status eligibility and support use of concurrent filing under the EB-5 Reform and Integrity Act.