The Duration of Status Lawsuit: What It Actually Argues

Aug 23

7 min read

A federal judge in Boston hears arguments September 9 — six days before the rule takes effect.

On August 18, eight organizations sued the Department of Homeland Security in federal court in Boston over the rule ending duration of status.

Let me refresh your memory: "Duration of status," or D/S for short, means you were allowed to stay in the U.S. until you finished your degree.

DHS is ending D/S and replacing it with a fixed admission period — four years, or your program end date, whichever comes first.

Need longer? You have to apply for an extension and hope it's approved.

The rule covers F-1 students, J-1 exchange visitors and scholars, and I visa journalists, who get capped at 240 days.

Back to the lawsuit. First, the plaintiffs are:

Three higher education groups (NAFSA, the Presidents' Alliance on Higher Education and Immigration, and the Association of Independent Colleges and Universities in Massachusetts)
Four unions (the American Federation of Teachers, Brown University's graduate worker union, the UAW, and UAW Local 2322)
One journalism union (the NewsGuild-CWA)

They are all represented by the law firm McDermott Will & Schulte. They filed two documents.

One starts a lawsuit, which could take years to resolve. The other asks the judge to pause the rule immediately. That request is called a motion for a preliminary injunction.

A hearing is set for September 9....and the rule to end D/S takes effect September 15.

Yes...it's cutting it pretty close. But it's important to understand this point:

These organizations are not arguing DHS can't end duration of status. They're arguing DHS didn't follow the rules for how a federal agency has to justify a change this big.

So as of now, nothing has changed. D/S is still scheduled to end September 15.

But if the judge decides to approve the injunction while the lawsuit plays out, it could stop the new rule from going into effect.

OK — if you need to go to class...this is what you need to know.

But if you're like me and had a LOT more questions...

Please...won't you join me... in diving deeper to learn more about:

Lawsuit vs. Injunction - What's the Difference?

A lot of the coverage uses "lawsuit" and "injunction" interchangeably. They are different things, and the difference matters.

The complaint opens the case. It names the defendants and lays out the legal claims. A case like this normally takes months or years to resolve.

The motion for a preliminary injunction is the emergency request.

Its entire purpose is speed. A ruling in 2028 does nothing for a student who withdrew from their program in 2026, or for a university that already spent a million dollars rebuilding its systems. So the plaintiffs asked the judge to freeze the rule now, while the lawsuit proceeds.

That motion is why September 9 is on the calendar at all.

What Proof Do They Have that DHS Skipped the Rules Before Ending Duration of Status?

This is the part most coverage skips, and it's the part that determines whether the case wins.

But first, it's important to state again that this group isn't arguing that DHS lacks the power to end duration of status. They're just saying DHS didn't follow the rules before implementing such a big change.

Federal agencies operate under the Administrative Procedure Act (APA).

An agency can adopt a policy people hate, and it survives — as long as the agency examined the relevant data, explained the connection between the problem and the fix, responded to serious public comments, and considered less disruptive options.

Skip those steps and a court can throw the rule out no matter how sound the policy might be.

The motion says DHS skipped them five times over:

The cost-benefit math doesn't work. DHS acknowledged the rule will cost roughly $443 million a year in compliance, including $257.8 million in the first year alone just for schools and sponsors to learn and adapt to the new system. It assigned a dollar value to exactly zero of the benefits, calling national security and fraud prevention "qualitative." The plaintiffs point out that federal guidance reserves qualitative-only treatment for genuinely unmeasurable things — and that agencies routinely put dollar figures on fraud prevention in other rules.

DHS declined to count the biggest cost. A NAFSA and Institute for Progress survey found that 49% of current international students say they would not have enrolled under this system, and 16% fewer prospective students said they were likely to come. An economic analysis in the comment record estimated that even a conservative 10% enrollment decline would cost the U.S. economy $72–145 billion a year within a decade. DHS's response was that surveys reflect hypothetical preferences and might overstate the drop. It never examined the survey's methodology, and it never explained why "might be overstated" justifies treating the cost as zero.

The rule doesn't fit the problem DHS described. DHS justified the change with examples of espionage and visa fraud. But under the new rule, a student can be in the country four full years before any check-in. DHS's own lead example involved someone here two years. As commenters put it, a real bad actor simply finishes on time. And DHS admitted there is no public data showing a security or fraud problem among international journalists — then capped their admission at 240 days anyway.

Narrower alternatives got brushed aside. Commenters proposed improving SEVIS to flag suspicious cases, adding a check-in requirement for long-duration students, setting admission periods to match actual program length, and targeting enhanced screening at sensitive research fields. DHS largely rejected these by restating that its own approach has the features it wants — which is circular, not a reason.

The comment period was too short. Executive Order 12866 calls for at least 60 days on significant rules. DHS allowed 32. It acknowledged the rule is significant, acknowledged the 60-day norm, and pointed to the roughly 22,000 comments it received as proof that 32 days was enough. The plaintiffs call that backwards reasoning — and note DHS then took nearly a year to finalize the rule while claiming urgency.

There's also a separate claim that isn't about process at all.

Congress defined F-1 status using four criteria: a bona fide student, qualified, coming temporarily, and solely to study.

The rule adds a fifth requirement that isn't in the statute — that each new program be at a higher level than the last.

The sharpest line in the motion catches DHS conceding in its own rule that there are legitimate reasons to study at the same or a lower level, and then banning the practice anyway.

Why Boston and Not Washington, D.C.?

Well, a few reasons. First, a venue in Boston was available because AICUM and UAW Local 2322, two of the organizations filing the lawsuit, are both based in Massachusetts.

But secondly, there was a recent ruling in Massachusetts that could be beneficial to this lawsuit.

On August 7 — eleven days before the D/S lawsuit was filed — the First Circuit ruled in a case called Woonasquatucket that courts can still pause federal rules nationwide under the APA, despite the Supreme Court's recent limits on universal injunctions.

That is precisely the remedy this coalition wants, and in Massachusetts it's binding law rather than an argument they'd have to build from scratch.

Choosing a favorable court is a normal and legal tactic that both sides use.

Worth noting: Boston assigns cases randomly across a large bench, so the plaintiffs chose a circuit, not a judge. The case landed with Judge F. Dennis Saylor IV, appointed by George W. Bush in 2004.

So, what happens next?

DOJ files its opposition brief, meaning, it will need to document how it did follow the rules.

Then both sides argue in person on September 9.

A ruling should come before September 15, either from the bench or in a written opinion within days.

Four things could happen:

The rule is paused nationwide while the case proceeds. The biggest win available to the plaintiffs.
The rule is blocked only for students and scholars at plaintiff-affiliated institutions. This one is worth thinking about now — it would create a two-track system where coverage depends on whether your school belongs to one of these organizations.
The motion is denied and the rule takes effect September 15 while the lawsuit continues in the background.
A short administrative pause if the judge needs more time to write.

Whoever loses can appeal to the First Circuit, and from there to the Supreme Court's emergency docket. September 9 is a major date, but probably not a final one.

What This Means for International Students

Nothing changes before September 15.

Don't defer, withdraw, or restructure your plans based on a case that hasn't been decided.

Bring your specific timeline to your DSO or responsible officer — especially if your program runs past four years, or if you're planning a transfer or a second degree.

And I'll be sure to keep you posted as this develops.