ICE Issues Updated Guidance and Restricts Online Options for New Students for Fall 2020 Semester

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.On July 24, 2020, U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) issued updated guidance for international students pursing education programs in the United States. The follow-up guidance states that active students in F-1 and M-1 status, as well as schools certified by SEVP, should abide by SEVP guidance originally issued in March 2020, enabling schools and students to engage in distance learning in excess of regulatory limits during the COVID-19 public health emergency. The updated guidance also makes clear that designated school officials (DSO) should not issue Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” to “a student in new or initial status who is outside of the United States and plans to take [a fully online course of study] at an SEVP-certified educational institution.”

Generally, a foreign national student studying in the United States under an F-1 or M-1 student visas must attend all classes in person and cannot take more than one online course per semester. Because of the COVID-19 pandemic, SEVP authorized a temporary exemption from this requirement in March 2020. The exemption permitted international students holding F-1 and M-1 visas to take additional online courses for the purposes of maintaining a full course of study in compliance with F-1 and M-1 nonimmigrant visa requirements.

Rescinded Guidance

On July 6, 2020, ICE attempted to modify the March temporary exemption for nonimmigrant students taking online courses due to the pandemic for the fall 2020 semester. The updated guidance would have provided some continued flexibility for schools that adopted an in-person or hybrid model for the fall 2020 semester. However, the same flexibility would not have been afforded to students in the United States studying at schools operating entirely online for fall 2020, effectively requiring impacted international students to depart the United States or consider transferring to schools offering in-person classes. On July 14, 2020, following a short hearing in a case brought by several universities, ICE agreed to abandon the proposed policy and to continue to honor its prior guidance, issued in March 2020.

Guidance for the Fall Semester (2020)

The Department of Homeland Security (DHS)” has agreed to return to the previous COVID-19 guidance from March 2020, which allows students taking online courses to reside in the United States on F-1 visas “for the duration of the emergency.” SEVP is now limiting the applicability of that guidance with the following modifications to the temporary exemptions for the fall 2020 semester.

  • The March guidance will apply only “for the duration of the emergency” to nonimmigrant students who were
    1. Actively enrolled at a U.S. institution on March 9, 2020; and
    2. Remained in compliance with the terms of their immigration status regardless of whether they were inside the United States or abroad.
  • The guidance does not apply to nonimmigrant students in new or initial status after March 9, 2020. (Those students will not be able to enter the United States to enroll at a U.S. school as a nonimmigrant student to pursue a full course load that is entirely online.)
  • International students must satisfy the SEVP requirements as reflected on the Form I-20 and in the Student and Exchange Visitor Information System (SEVIS) to qualify for nonimmigrant student visas.
  • International students must obtain the appropriate visas before traveling and may still be subject to visa processing and travel restrictions due to the COVID-19 pandemic.
  • Schools will be required to update their information in SEVIS within 10 days of a COVID-19–related procedural change; if they begin the fall semester with in-person classes but are later required to shift to online classes only; or if a nonimmigrant student changes course selections, and as a result, ends up taking an entirely online course load.

Analysis and Impact

SEVP’s updated guidance leaves some questions unanswered. While it is clear that new international students may not enter the United States and enroll in schools that elect to follow a full online model in the fall, the announcement does not provide additional information regarding whether those students would be eligible to attend schools that adopt a hybrid model, offering a mix of in-person and online courses.

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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