Confusion Over F-1 Visa Regulations: How Conflicting US Immigration Rules Affect International Students

TL;DR

International students enrolled in ICE SEVP-certified schools often have the opportunity to participate in study-abroad programs approved by their institutions. However, recent changes to F-1 visa regulations have caused confusion, particularly regarding the five-month absence rule enforced by the U.S. Citizenship and Immigration Services (USCIS). This discrepancy between USCIS and SEVP policies has left students uncertain about their visa status after studying abroad.

On August 27, 2024, the USCIS issued a Policy Alert clarifying its interpretation of the five-month temporary absence rule for F-1 students. The problem? The five-month rule now applies even to students enrolled in authorized study-abroad programs, conflicting with long-standing Student and Exchange Visitor Program (SEVP) guidelines.

International students enrolled in ICE SEVP-certified schools often have the opportunity to participate in study-abroad programs approved by their institutions. However, recent changes to F-1 visa regulations have caused confusion, particularly surrounding the five-month absence rule enforced by the U.S. Citizenship and Immigration Services (USCIS). This discrepancy between USCIS and SEVP policies is leaving students unsure of their visa status after studying abroad.

On August 27, 2024, the USCIS issued a Policy Alert clarifying its interpretation of the five-month temporary absence rule for F-1 students. The issue? The five-month rule now applies even to students enrolled in authorized study-abroad programs, causing a conflict with long-standing Student and Exchange Visitor Program (SEVP) guidelines.

FOR THE FULL TEXT OF THE RULE SEE  https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-214

Understanding the F-1 Visa Absence Rule

The US Customs and Immigration Service goes into detail in its Policy Manual.  YUNO LEARNING broke the stipulations of the Policy Manual into GO – NO GO terms:

https://www.uscis.gov/policy-manual/volume-2-part-f-chapter-7 US Customs & Immigration Service Policy Manual Chapter 7 – (Absences From the United States)
F-1 Students
Less than 5 months: YES						More than 5 months: NO
A student enrolled in an ICE SEVP-certified school during a study abroad program may remain active in SEVIS IF the study abroad program lasts less than 5 months.						A student enrolled in an ICE SEVP-certified school during a study abroad program may NOT remain active in SEVIS if the study abroad program lasts more than 5 months
IF the study abroad program lasts less than 5 months.		THEN 🡺		The student may remain active in SEVIS		IF the study abroad program lasts more than 5 months	THEN 🡺	The student will need a new Form I-20 to be readmitted.  This means paying the I-901 SEVIS fee again
Requirements for readmission
5 MONTHS-OR-LESS CASES						5 MONTHS-OR-MORE CASES
An F-1 student returning to the United States from a temporary absence of 5 months or less may be readmitted for attendance at an educational institution certified by U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) IF the F-1 student presents:						IF an F-1 student leaves the United States for more than 5 months AND IS NOT ABLE TO REMAIN ENROLLED at the student’s ICE SEVP-certified school, the student will NOT be able to maintain student status. To resume the program of study in the United States, the student will need to
1					3
IF there has been NO substantive change to the most recent Form I-20 information	THEN 🡺		The student needs current Certificate of Eligibility for Nonimmigrant Student Status (Form I-20) properly endorsed by the Designated School Official (DSO)		A valid F 1 nonimmigrant visa, unless otherwise exempt.	Seek readmission in initial status	A new Form I-20
OR
IF there has been a substantive change in the information on the F-1 student’s most recent Form I-20, such as in the case of an F-1 student who has changed the major area of study, who intends to transfer to another SEVP-certified institution, or  who has advanced to a higher level of study	THEN 🡺		The student needs an updated Form I-20		A valid F 1 nonimmigrant visa, unless otherwise exempt.
M-1 Students
Cases WITH previous authorisation						Cases WITHOUT previous authorisation
An M-1 student returning to the United States from a temporary absence to attend the school that the student was previously authorized to attend MUST present:						An M-1 student may NOT be admitted to begin practical training that was not authorized before the student’s departure. As a result,
IF there has been NO SUBSTANTIVE CHANGE in the information on the student’s most recent Form I-20 since the form was initially issued		THEN 🡺		The student needs only a properly endorsed Form I-20 AND a valid M nonimmigrant visa, unless otherwise exempt.		IF an M-1 student departs the United States while an Application for Employment Authorization (Form I-765) is pending,	THEN 🡺	USCIS denies the Form I-765.
IF there has been SUBSTANTIVE CHANGE in the information on the student’s most recent Form I-20 since the form was initially issued		THEN 🡺		A new Form I-20  AND a valid M nonimmigrant visa, unless otherwise exempt.
Transfer cases
IF USCIS has authorized an M-1 student to transfer between schools and the student is returning to the United States from a temporary absence to attend the school to which the transfer was authorized as indicated on the student’s Form I-20		THEN 🡺		The name of the transfer-in school does not need to be specified in the student’s visa.
MANDATORY: The student MUST be returning to the United States to perform the authorized practical training.						DENIED: An M-1 student may NOT be admitted to begin practical training that was not authorized before the student’s departure. As a result,
IF USCIS has authorized an M-1 student to engage in practical training and the student is returning to the United States from a temporary absence		THEN 🡺		The M-1 student may be readmitted for the remainder of the authorized period indicated on the student’s Form I–20.		IF an M-1 student departs the United States while an Application for Employment Authorization (Form I-765) is pending	THEN 🡺	USCIS denies the Form I-765.
OPT
Time spent outside of the United States does NOT extend the period of authorized Optional Practical Training (OPT). Time spent overseas counts towards the F-1 student’s aggregate maximum allowed period of unemployment.
Conditions for re-entering to engage in OPT
An F-1 student currently approved for OPT MAY RE-ENTER the United States to engage in OPT IF the student has:
1				2			3
A current visa (if applicable),				A Form I-20 endorsed for travel by the student’s DSO within the last 6 months,			An unexpired Employment Authorization Document (Form I-765)

So, as per the USCIS, five months is the cut off and it makes no difference whether the student is enrolled in an authorized programme or not.  It’s either return to the US within five months or face the complication and expense of submitting a new I-20 Form.

But … wait a minute. The long-standing guidelines of the Student and Exchange Visitor Program (SEVP) says that the five-month rule does not apply IF the international student studying abroad is enrolled in an authorized program.   As per SEVP, whether the student is enrolled in an authorized programme or not, makes a crucial difference.  Authorised programme equals NO fresh I-120 Form.  No authorised programme equals fresh I-120 Form.

USCIS vs. SEVP: Conflicting Interpretations of the Five-Month Rule

	U.S. Immigration and Custom Service	This is a program within the Department of Homeland Security that authorizes changes of status for international students.
	Student and Exchange Visitor Program	This is a program within U.S. Immigration and Customs Enforcement (ICE) that oversees student visa regulations. SEVP also reviews schools that want to enroll nonimmigrant students and certifies them to issue the I-20 Form.

Stakeholders widely believe that the government had no intention of tightening restrictions further … much less introducing contradictions between two government agencies. But there’s no denying that the two conflicting statements on re-entry requirements have got even seasoned immigration officers confused. 

Speaking to PIE News, Aaron Blumberg, partner at Fragomen Immigration Lawyers, pointed to the discrepancy:

“SEVP is stating that you only need a new visa if you are outside the US for more than five months and not enrolled in study abroad; whereas, USCIS states that you need a new I-20 if you are in a study abroad program lasting more than five months.”

PIE News sought clarification directly from SEVP and was told

“The language in the USCIS Policy Manual clarification on F-1 participation in a study abroad program is NOT intended to be a change to, or deviation from, SEVP’s longstanding interpretation regarding students spending time outside of the United States.

If an international student is outside the United States for more than five consecutive months (and NOT enrolled in an authorised study-abroad program) they will generally need to reapply for a new visa to return to the United States,”

PIE News also asked the USCIS and was told

“Form I-20 is not a USCIS form. USCIS does not manage the student visa program.”

Meanwhile, international education organizations and institutes of higher education have plunged into advocacy efforts to seek clarification in support of F-1 students enrolled in approved academic activities abroad.  Fearing that the sudden nature of the changes will put students due to graduate this year at risk of losing their F-1 status and related work opportunities such as OPT eligibility, they are calling for a grace period that will enable students currently abroad to adjust their plans.

In comments to media, SEVP officials have been clearly reluctant to directly face the variance between its stand and that of the USCIS.  Instead, they stress that the situation rarely arises: “Of the more than 1.2 million active F and M students, an initial review of SEVIS data suggests a minimal number of students are affected”.

Advice for International Students: What to Do Next

Key Steps for Students:

1. Consult with Your University’s International Student Office: Before committing to any study-abroad programs that extend beyond five months, speak with your Designated School Official (DSO) for the latest guidance.
2. Request a Letter of Support for Reentry: If you’ve been abroad for more than five months or plan to be, ask your DSO for a letter confirming your enrollment in an authorized study-abroad program. This can help you in reentry negotiations.
3. Keep Track of Policy Changes: The situation remains fluid, so stay updated on new announcements from SEVP, USCIS, and your school.
4. Consider Shortening Study-Abroad Programs: If possible, try to limit your study-abroad program to less than five months to avoid complications upon reentry.
5. Prepare Financially for Reapplication: If your program exceeds five months, be prepared to pay the I-901 SEVIS fee again and allow time for the new I-20 form to be processed.

Until the U.S. government resolves this conflict, F-1 visa students need to take steps to protect their status. By staying informed, working closely with university advisors, and planning ahead, students can avoid complications upon reentry. Although the discrepancy has affected a relatively small number of students, it’s crucial to stay prepared.