Executive Summary
- DHS has submitted a final rule to eliminate "duration of status" for F-1 visa holders and replace it with a fixed admission period tied to the employee's program or OPT end date.
- For the first time, F-1 employees will have a hard I-94 expiration date. If it lapses without a filed extension, the employee falls out of status and loses work authorization.
- The highest-risk moment is not steady-state OPT - it is the transition between stages: academic program completion to OPT, and OPT to STEM OPT. Those are the gaps where an I-94 can expire if filings are not timed correctly.
- The extension of stay is filed by the employee, not the employer. HR's role is to make sure employees know this is coming and do not miss the deadline.
- The rule is not yet in effect, but could take effect as early as September 2026. HR teams should get ahead of it now.
What is changing and why it matters
Right now, when an F-1 student enters the U.S., their I-94 record shows "D/S" (duration of status). That means there is no fixed date their authorized stay ends. As long as they maintain F-1 status (enrolled, working through authorized OPT or STEM OPT), they are legally present. There is no hard I-94 expiration to track.
DHS submitted a final rule to the Office of Management and Budget on May 5, 2026, the last step before Federal Register publication. Once published, the rule is expected to take effect 30 to 60 days later, potentially as early as September 2026.
What replaces D/S: A fixed admission period tied to the student's program or employment authorization end date, not to exceed four years. F-1 employees will receive an I-94 with a hard expiration date. To continue beyond that date, they must file an extension of stay application with USCIS, which includes biometrics collection. If they miss the deadline, they begin accruing unlawful presence, which carries serious long-term immigration consequences including bars on returning to the U.S.
Under current D/S policy, unlawful presence only begins accruing after a formal finding by USCIS or an immigration judge. Under the new rule, it starts the day after the I-94 expires with no filing pending. That is a significant change.
The grace period after OPT ends would also shorten from 60 days to 30 days.
How it compares to managing H-1B status
If your team already manages H-1B employees, you have a useful reference point. The new F-1 rule introduces the same core concept: a hard I-94 expiration date that requires a timely extension filing or the employee falls out of status. The stakes are the same. But how HR is involved is different.
The biggest operational difference: with H-1B, HR drives the extension. With F-1, the employee drives it, and HR's job is to make sure they know it is coming far enough in advance to file before USCIS processing delays create a gap.
How this affects employees you currently have on OPT or STEM OPT
This is the most urgent question for HR teams right now. The final rule's transition provisions are not yet public, so there is still uncertainty about how employees already in the U.S. on D/S will be treated. Your immigration provider should flag the moment the full rule text publishes.
What the NPRM proposes for current employees: Under the proposed transition framework, employees already in the U.S. would receive an admission period tied to their current program or OPT end date, not to exceed four years from the rule's effective date. An employee whose OPT is already approved would have their I-94 run through their current EAD expiration.
Where the real risk lies: The concern is not during steady-state OPT or STEM OPT, where the proposed rule ties the I-94 to the EAD date. The risk is at the transition points:
- When an academic program ends and the student is waiting for OPT approval, their I-94 (set to program end date plus a 30-day departure period) could expire before the OPT EAD is issued.
- When OPT ends and the student is waiting for STEM OPT approval, the same gap can open.
Under D/S, students in these pending windows remained in status automatically. Under the new rule, there is a hard date on the I-94 and no automatic extension. If the filing is late or USCIS processing runs long, the employee falls out of status.
Use this table to identify which employees to review first:
How the process changes for future F-1 hires on OPT and STEM OPT
For employees hired after the rule takes effect, the process will look like this:
The key shift: there are now multiple filing deadlines tied to a hard I-94 date. Missing any one of them during a status transition puts the employee out of status. HR's role is to make sure employees understand these windows and act early enough to account for USCIS processing time.
Who files the extension, and who pays for it?
Who files: The employee. The extension of stay application is an individual filing made by the foreign national, not the employer. Your immigration provider can assist the employee, but the filing is theirs.
Who pays: This varies by employer policy and is worth reviewing before the rule takes effect.
- Under the 2024 USCIS fee schedule, the current extension of stay filing fee is $470 for paper filing or $420 online. There is no separate biometrics fee; biometric costs are included in the main filing fee.
- Employers are not legally required to cover this cost.
- Unlike H-1B filing fees, which USCIS regulations require the employer to pay, the extension of stay is the employee's personal filing and the cost falls to them by default.
- Some employers choose to cover it as a retention benefit. If your company has an immigration benefits policy, check whether F-1 extensions fall under it. If you do not have a policy, now is a good time to decide before employees start asking.
What HR's role is: HR does not file the extension. But HR does need to make sure the employee knows the deadline is coming, understands the consequences of missing it, and has connected with an immigration attorney to file on time. USCIS processing times for extension applications can run several months, so the filing needs to happen well before the I-94 expiry date, not right at it.
What HR should be doing now
The rule is not in effect yet, but the window between publication and effective date could be 30 to 60 days. Here is how to prepare:
1. Pull your F-1 employee inventory. List every employee on OPT or STEM OPT. Capture their current EAD expiration, their OPT or STEM OPT end date, and any upcoming status transitions. Most will show D/S on their current I-94.
2. Use the priority table above to flag who needs attention first. Employees approaching a status transition - program ending, OPT expiring, STEM OPT coming up, H-1B pending - are the highest priority. Employees in stable mid-OPT periods have more runway.
3. Decide on your cost policy before employees ask. Will your company cover the extension of stay filing fee? Having an answer before the rule takes effect saves difficult one-off conversations later.
4. Brief your F-1 employees before the rule kicks in. Many F-1 employees have never had to track an I-94 expiration date. They need to know this rule is coming, what it requires them to do, and how far in advance they need to act. A proactive communication prevents employees from inadvertently falling out of status.
5. Ask your immigration provider for a transition plan. Once the Federal Register text publishes, your provider should be able to map each employee's timeline: when their I-94 would be set under the new rule, which transition windows create filing deadlines, and whether any employees are at immediate risk.
Frequently asked questions
Is this rule finalized?
Not yet. DHS submitted the rule to OMB on May 5, 2026, for final review. The full rule text will not be public until it is published in the Federal Register. HR teams should ask their immigration providers to send an alert the moment that happens.
Will current F-1 employees be grandfathered?
Unknown. The transition provisions are in the final rule text, which has not been released. Based on the proposed rule, current employees would receive an admission period tied to their program or OPT end date, not to exceed four years from the effective date. Your immigration provider should be able to model individual timelines once the final rule publishes.
Does this change how HR completes the I-9?
Potentially yes. Under D/S, HR records the EAD expiration on the I-9 for OPT employees. Under the new rule, the I-94 will also have an expiration date, and HR will need to ensure it remains current alongside the EAD. USCIS is expected to provide updated I-9 guidance when the rule takes effect. Watch for it.
What happens to employees transitioning from STEM OPT to H-1B?
Cap-gap currently protects F-1 work authorization while an H-1B petition is pending. Under the new rule, HR and immigration counsel will need to confirm that the I-94 remains valid through the cap-gap period and that H-1B status begins before any gap opens. This is a case where early coordination matters; do not wait until the H-1B start date is approaching.
How WayLit helps
WayLit automatically tracks regulatory changes like this one and surfaces the implications directly to HR leaders, informed by the attorneys managing your cases. You do not need to monitor the Federal Register or wait for your law firm to send a newsletter. When something changes that affects your employees, you hear about it with context and direction, not just a headline.
If your team is currently managing immigration deadlines in a spreadsheet and compliance feels reactive, that is exactly the problem WayLit is built to solve.
This article is for informational purposes only and does not constitute legal advice. The rule described above is proposed and not yet in effect. Immigration law changes frequently and individual circumstances vary. Consult qualified immigration counsel before making decisions about your employees' immigration status.
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