Employer Impact of the DHS Rule Eliminating Duration of Status for F-1 and J-1 Nonimmigrants

By Sheryl Thomas and Rebecca A. Winterscheidt

Department of Homeland Security’s final rule eliminating “duration of status” (D/S) for F-1, J-1, and I nonimmigrants takes effect Tuesday, September 15, 2026. Going forward, these employees get a specific expiration date instead of indefinite status, and most who need more time must file with U.S. Citizenship and Immigration Services (USCIS) rather than relying on their school. Existing cap-gap protections and the STEM Optional Practical Training (OPT) automatic work-authorization extension are unchanged. 

What Changed

Today, F-1 and J-1 employees are admitted for “duration of status” (D/S) and their Form I-94 just says “D/S,” meaning they can stay as long as they remain a legitimate student or exchange visitor, with no calendar deadline. Starting September 15, 2026, every F-1 and J-1 employee instead gets a specific expiration date on their I-94, called the “admit until date” or AUD, tied to their I-20 (F-1) or DS-2019 (J-1) end date and capped at four years. This AUD is separate from their work permit (EAD) expiration date; and the two dates can differ, and both matter. To stay past the AUD, the employee must file an Extension of Stay (EOS) with USCIS; their school can no longer just grant more time. A denial after the AUD passes means immediate departure, with no grace period. One more date to update in your calendars: the post-program departure window for F-1 employees is being cut from 60 days to 30 days, so wind-down timing after a program or OPT/STEM OPT ends is now tighter.

Current employees: Anyone already here on D/S keeps D/S on paper, but must file an EOS to stay past their program end date, capped at November 14, 2030 (four years plus a 60-day buffer). If they travel internationally and return on or after September 15, 2026, they’ll come back with a fixed AUD instead. Employers should screen upcoming travel for this group now.  

OPT and STEM OPT: Two Dates to Watch

For employees on OPT or STEM OPT, track two dates that no longer move together: the EAD expiration (controls work authorization) and the AUD (controls immigration status). An EAD can look valid even after the AUD has expired. Continuing to employ that person past the expired AUD date is unauthorized employment that carries serious implications for both the foreign national and the employer.

Why STEM OPT Is Especially Likely to Need an EOS

OPT and STEM OPT time counts toward the same four-year cap as the degree program. Twelve months of OPT plus 24 months of STEM OPT is 36 months on its own; add a typical two-year master’s, and total time reaches about five years, which is already over the 4-year cap. The final rule keeps the existing 180-day automatic work-authorization extension for timely filed STEM OPT applications unchanged. There’s also a one-time break: F-1 employees still here 60 days after September 15, who timely file for OPT or STEM OPT by March 18, 2027, don’t need a separate EOS filing for that request. Traveling before filing forfeits this exception.

H-1B Cap-Gap: Unchanged

The final rule maintains cap-gap which allows an F-1 employee to continue work while their H-1B petition is pending, bridging OPT/STEM OPT to the H-1B start date. Employees with a timely filed cap-subject H-1B petition simply keep working until the H-1B is approved or April 1 of the relevant fiscal year, whichever comes first – no EOS is needed.

The Real Risk: Unlawful Presence

Today, F and J employees generally don’t accrue unlawful presence without a formal USCIS or court finding. Starting September 15, 2026, unlawful presence accrues automatically the day after the AUD expires with no notice given, unless a timely EOS was filed, in which case the clock starts only if that EOS is later denied. Over 180 days triggers a three-year reentry bar; over a year triggers 10 years, under INA § 212(a)(9)(B)(i). A processing delay or missed filing can permanently bar an employee’s return after any trip abroad. Also, reentering on a new I-20/DS-2019 after the old admission expired treats a pending EOS as abandoned.

J-1 Scholars and Researchers

J-1 researchers, scholars, physicians, and trainees face the same four-year cap, with EOS filings replacing extensions that sponsors used to handle directly — a real risk for tenure-track, multi-year grant, and medical residency appointments that often run longer than four years. As with F-1, an EOS denial after the AUD expires means immediate departure with no grace period.

I-9 Compliance

Track the AUD as a second expiration date alongside the EAD. Employing someone past their AUD without proof of an approved or pending EOS is a violation, even if the EAD looks fine. Two automatic bridges apply while an EOS is pending: 240 days for on-campus work, severe-hardship off-campus work, CPT, and J-1 status-based work; 180 days (unchanged) for STEM OPT. An expired I-94 plus the USCIS receipt notice should document either bridge, similar to pending H-1B extensions.

Action Items To Consider Prior to September 15, 2026

DHS’s final rule has adopted most of its August 2025 proposal with some employer-favorable adjustments, including preserved cap-gap and STEM OPT extensions. Detailed I-9 and SEVIS implementation guidance is still forthcoming ahead of the September 15, 2026, effective date. Employers have until September 15, 2026 to get ahead of this change.