On July 6, 2020, the Trump Administration announced that due to continued public safety concerns surrounding COVID-19, it is imposing far-reaching restrictions on the F-1 and J-1 programs. These restrictions have significant implications for hundreds of thousands of foreign students currently in the United States, as well as U.S. colleges and universities.

To provide context, there were over one million international students in the United States during the 2018/19 academic year, collectively infusing more than $41 billion into the U.S. economy. The foreign student population includes 478,732 students from India and 251,290 students from China.

Commencing with the fall 2020 semester, the U.S. Department of State will no longer issue student visas to foreign students outside the United States who are enrolled in online-only academic programs, nor will U.S. Customs and Border Protection admit foreign students to attend a college or university offering online-only programs. F-1 and J-1 students are prohibited from enrolling or continuing their studies at any college or university that does not offer at least one in-person class. There are certain exceptions where a program of study is providing a “hybrid” in-person and online component or where a student is an authorized period of curricular practical training (CPT) and making progress toward their degree.

The restrictions concerning online course instruction are not new and are found at 8 CFR 214.2(f)(6)(i)(G), which states,

"For F-1 students enrolled in classes for credit or classroom hours, no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study requirement if the class is taken online or through distance education and does not require the student's physical attendance for classes, examination or other purposes integral to completion of the class. An online or distance education course is a course that is offered principally through the use of television, audio, or computer transmission including open broadcast, closed circuit, cable, microwave, or satellite, audio conferencing, or computer conferencing...."

Under the regulations, a class would not be considered an online or distance education class for F-1 purposes if students are required to be physically present for any purpose that is "integral to completion of the class." Instructors could require that students report to a physical classroom only one or two days per semester for activities “integral to completion of the class,” such as picking up handouts, turning in assignments, etc. The whole rest of the semester could be spent safely “distance learning,” and it would not run afoul of the regulations.

This announcement, however, does NOT impact F-1 students who have completed their degree program and are working in their Optional Practical Training (OPT) year post-graduation.

What the Guidance Says

This new guidance is forcing foreign students to make critical and unexpected decisions if their school moves to an online-only model. These students must either: (1) immediately depart the United States and continue online classes remotely; or (2) transfer to an educational institution that offers at least one in-person class and willing to admit them at their current level of study. If they do nothing, ICE guidance is clear that these students would be subject to deportation. Notably, the agency charged with administering the Student and Exchange Visitor Program (SEVP) is the law enforcement agency charged with enforcing our immigration laws. Students who ultimately decide to return to their home country may also be impacted by travel restrictions being implemented across the globe due to the pandemic.

The impact of this policy on colleges and universities will also be severe. From a financial perspective, schools have come to rely on tuition from F-1 and J-1 students to operate programs and represents a significant portion of their total revenue and operating budgets. In addition to economic implications, there are public health concerns. Colleges and universities are now burdened with going back to the drawing board in formulating re-opening plans for the fall to take into account the new visa restrictions. A concern is that these new measures essentially strong-arm schools into holding in-person classes, which could run afoul of state and local public health ordinances and leave schools vulnerable to legal liability if a student contracts COVID-19.

From a process standpoint, Institutions of Higher Education must notify SEVP by August 4, 2020 as to what type of program (on campus and in–person, hybrid, or online only) they will be providing in Fall of 2020 and then must issue new I-20s to those F-1 students who qualify.

Students who find themselves in this unwelcomed scenario should contact their school’s foreign student office or Designated School Official (DSO) at their international student office to inquire about obtaining a new I-20 document. If no in-person classes are being offered, students should seek out other institutions which are offering in-person classes to which the student can transfer. It should be noted that English Language programs or any M-1 vocational courses do not qualify.

As expected, the policy has already resulted in litigation. In President and Fellows of Harvard College et al v. United States Department of Homeland Security et al, 1:20-cv-11283 (U.S. District Court for the District of Massachusetts), both Harvard University and the Massachusetts Institute of Technology filed suit to enjoin the new policy. The suit alleges that U.S. Immigration and Customs Enforcement issued the policy arbitrarily, without offering “any reasoned basis for the sudden and dramatic change of position.”

The schools contend that the policy fails to consider the public health risks to foreign students currently residing in the United States who must, under the rule, arrange last-minute travel to their home countries during a global pandemic. According to the complaint, “ICE’s action leaves hundreds of thousands of international students with no educational options within the United States.”

The suit also highlights the significant burden placed on colleges and universities and alleges that the Trump administration is simply using the rule to force universities to reopen and hold in-person classes as part of its broader agenda. The suit alleges that the policy puts universities in the "untenable situation of either moving forward with their carefully calibrated, thoughtful, and difficult decisions to proceed with their curricula fully or largely online in the fall of 2020," or to "attempt, with just weeks before classes resume, to provide in-person education despite the grave risk to public health and safety that such a change would entail."

The Immigration Team at Harris Beach PLLC will continue to monitor this highly fluid matter and will post any updates as they become available.