DHS Restricts Online Learning for Foreign Students

Gibney Anthony & Flaherty, LLP

On July 6, 2020, the Student and Exchange Visitors Program (SEVP), part of  U.S. Immigration Customs and Enforcement (ICE), published guidance  restricting foreign students in F-1 or M-1 status from participating  in online learning programs for the Fall 2020 semester despite the ongoing coronavirus pandemic. The agency intends to publish a corresponding Temporary Final Rule in the Federal Register. The order reverses SEVP’s prior policy permitting F-1 students to take online courses during the coronavirus pandemic. Harvard University and MIT have sued to block implementation of the order.

Impact of Order on Foreign Students

Foreign students in F-1 or M-1 status will not be permitted to enroll in a full-time course of study that is conducted entirely online for the Fall 2020 semester.

  • Students enrolled at a school that will operate entirely online in the fall will be required to depart the U.S. by the beginning of the school term and attend classes remotely from abroad.   Students attending online classes from abroad may remain active in the school’s SEVIS system. However, this may adversely impact their eligibility for Optional Practical Training (OPT) employment eligibility at the completion of their degree program.
  • U.S. Customs and Border Protection (CBP) will deny entry to the U.S. of foreign nationals in F-1 or M-1 status planning to attend schools offering only online classes.
  • The Department of State will not  issue F-1 and M-1 visas at U.S. Consulates and Embassies abroad to students enrolled in schools adopting a full online program.

Foreign students enrolled in schools that will operate with a hybrid model of both in-person and online classes may remain in the U.S. and may take more than three credit hours of classes online provided that the school program is not entirely online and the student receives appropriate certification from the school.  The  student may only take the minimum number of online classes required to make normal progress in their degree program. Guidance as to what constitutes a “minimum number of online classes” has not been provided.

Foreign nationals in F-1 and M-1 status attending schools offering  in-person classes may remain in the U.S. as long as they continue to comply with all current rules and regulations.

The updated guidance does not impact foreign  students in the U.S. who are engaged in OPT/STEM OPT employment.   However, students with curricular practical training (CPT) who are enrolled at universities offering only online courses for Fall 2020 may be adversely impacted.  Students should consult with their Designated School Official (DSO) for more guidance.

Impact on Universities

Universities planning to offer entirely online classes for Fall 2020 must notify SEVP of the operational change by July 15, 2020.

Universities planning to offer a hybrid model of in-person and online classes must notify SEVP by August 1, 2020 and provide  details regarding the program.  Schools  with departments offering varying teaching formats should indicate these when reporting to SEVP.  SEVP will acknowledge receipt of the procedural change documentation but will not proactively notify the school as to whether the procedural change has been approved.

Response to Order

On July 8, 2020, Harvard University and MIT brought suit in federal district court in Boston to block the order. In its statement to the community, Harvard University characterized the order as cruel and reckless, and  a threat to public safety.  The universities seek a temporary restraining order and permanent injunctive relief prohibiting ICE from enforcing the order, and a declaration that the policy is unlawful under the Administrative Procedures Act.

Gibney will continue to monitor developments and provide updates.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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