Higher Ed Should Consider the Potential Loss of Foreign Students In Determining Their Fall Semester Plans

Arent Fox

Arent Fox

Student and Exchange Visitor Program (SEVP), which is part of the Department of Homeland Security, just published a new rule stating, in general, that F-1 and M-1 foreign students cannot remain in or enter the US if they are enrolled in entirely online classes in the fall semester.

SEVP had instituted a temporary rule stating that F-1 and M-1 foreign students could take more online courses than ordinarily allowed during the spring and summer semesters due to COVID-19 safety precautions.

But on July 6, 2020, SEVP modified that temporary rule stating that foreign students cannot remain in or enter the US in F-1 or M-1 status if they only take online classes in the fall. Schools will be required to issue new I-20 forms for ALL foreign students certifying that the school is offering at least some in-person classes and that the foreign national in question has enrolled in the number of online classes allowed for normal progress toward his/her degree. Foreign students abroad will not be granted visas to enter the US without this annotated I-20. Foreign students already in the US will be subject to removal proceedings if they are not given this annotated I-20 or if they are enrolled in entirely online classes in the fall semester. Higher educational institutions have until August 4, 2020 to issue these new I-20’s to foreign students.

As an alternative, SEVP advises foreign students who are enrolled in schools only offering online courses to either transfer to a school that offers at least some in-person classes or study remotely from their home country. In case of the latter, the school must annotate the SEVIS record (SEVP’s web-based system for maintaining information on foreign students and exchange visitors) and the I-20 to make it clear that the foreign student is taking a full course load of online courses abroad and that this is the only choice offered by the school.

If a school is offering normal in-person classes in the fall, the foreign student and school must comply with regular F-1 and M-1 enrollment standards.

F-1 students engaged in CPT (Curricular Practical Training) who are in otherwise compliant programs or OPT (Optional Practical Training) in the US can maintain active status in SEVIS. Thus, those who are working in OPT status with EAD cards are unaffected by this announcement.

As schools finalize their fall semester plans, they should consider the loss of foreign student enrollment if they choose to only offer online courses. Schools who are resuming “normal” in-person classes or offering a hybrid approach should consider ramping up their foreign student recruitment activities to attract those students who wish to transfer from schools offering entirely online classes for the fall.

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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