- There have been many changes to immigration processes and procedures in the United States as a result of the coronavirus pandemic, more have just been issued, and more are likely to come.
- Holland & Knight's sixth installment of alerts focusing on immigration under COVID-19 summarizes the new modifications announced by U.S. Immigration and Customs Enforcement (ICE) on July 6, 2020.
- While the announced modifications prohibit foreign national students under F-1 and M-1 visa status from essentially participating in online courses, there is concern that the modifications will further limit immigration to the U.S. and force schools to open in a fully operational manner notwithstanding the status of COVID-19-related health and safety considerations.
There have been many changes to immigration processes and procedures in the United States as a result of the coronavirus (COVID-19) pandemic. Holland & Knight's sixth installment of alerts focusing on immigration under COVID-19 summarizes the U.S. Immigration and Customs Enforcement (ICE) news release published on July 6, 2020, announcing that the Student and Exchange Visitor Program (SEVP) modified temporary exemptions for nonimmigrant students taking online courses because of the COVID-19 pandemic for the fall 2020 semester.
What Is the Historical Background?
Generally, foreign national students studying in the U.S. under an F-1 or M-1 student visa must attend all of their classes in person and are prevented from taking more than one online course per semester. Because of COVID-19, in March, ICE made an exception for foreign national students attending schools that switched to online classes only amid the pandemic. According to the Institute for International Education, a U.S. Department of State-backed initiative that tracks international student enrollment in the U.S. and internationally, there were 872,214 foreign national students enrolled in U.S. schools for 2018-2019, and such students contributed $45 billion to the U.S. economy in 2018.
How Were the Modifications Announced?
ICE issued a news release on July 6, 2020, summarizing the SEVP changes affecting foreign national students, which states that the U.S. Department of Homeland Security plans to publish the procedures and responsibilities in the Federal Register as a Temporary Final Rule (the Announced Modifications).
What Is the Purpose of the Announced Modifications?
Because of COVID-19, in March 2020, SEVP authorized a temporary exemption regarding online study for the spring and summer 2020 semesters, pursuant to which F-1 and M-1 student visa holders were permitted to take more online courses than normally allowed for purposes of maintaining a full course of study to maintain their F-1 and M-1 nonimmigrant visa status. The Announced Modifications stop the temporary exemption and restricts F-1 and M-1 visa holding foreign national students from being authorized to be physically present in the U.S. if they participate in more than one online course or online courses resulting in more than three credits as part of their educational program for the fall 2020 semester.
How Are F-1 and M-1 Students Directly Affected by the Announced Modifications?
The Announced Modifications specifically make the following temporary exemptions for the fall 2020 school semester:
- Foreign national students holding F-1 or M-1 student visa status attending schools operating online may not take a full online course load and remain in the United States, as the U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall 2020 semester, nor will U.S. Customs and Border Protection permit such students to enter the U.S. Active students currently in the U.S. enrolled in such programs must depart the U.S. or take other measures, such as transferring to a school with in-person instruction, to maintain their lawful student status in the U.S. According to ICE, any students not abiding by the new modifications may face immigration consequences, including but not limited to, the initiation of removal proceedings.
- F-1 students attending schools operating under normal in-person classes are bound by the existing federal regulations governing students in the U.S., and eligible F-1 students, may take a maximum of one class or three credit hours online per semester.
- F-1 students attending schools utilizing a hybrid model (i.e., a mixture of online and in-person classes) will be allowed to take more than one class or three credit hours online. Such schools must certify to SEVP, through the underlying student's accompanying Form I-20 (Certificate of Eligibility for Nonimmigrant Student Status) that the program is not entirely online, that the student is not taking an entirely online course load for the semester and the student is taking the minimum number of online classes required to make normal progress in their degree program.
- These exemptions do not apply to F-1 student visa holders in English language training programs or M-1 student visa holders pursuing vocational degrees, who are not permitted to enroll in any online courses.
How Will ICE Know What Programs a School Is Offering?
For all foreign national students under F-1 and M-1 visa status attending schools in the U.S. this fall, each school's Designated School Official (DSO) must issue a new Form I-20 to each such student certifying that the school is not operating entirely online, that the student is not taking an entirely online course load and that the student, if taking online courses, is not exceeding the number of online classes permitted to further normal progress in their degree program. If a school changes its class structure mid-semester to offer only online courses or if a foreign national student changes his or her course load and, as a result, an F-1 or M-1 foreign national student switches to only online courses, the Announced Modifications remind schools that such students within the United States are not permitted to take a full course of study through online courses.
What Can Foreign National Students Do if They Want or Need to Take an Online Course Load?
F-1 and M-1 students continue to be authorized to take one online course or three credits via an online course per semester toward their degree program while studying in the U.S. Since F-1 and M-1 student visa holders are not permitted to take a full course of study through online courses, the student must either leave the United States or take alternative steps to maintain their nonimmigrant F-1 or M-1 student visa status, such as taking a reduced course load or transferring to a school that offers sufficient in-person classes. Additionally, foreign national students can leave the United States and take a full course load online from outside of the U.S.
What Is Required of the Schools?
- Schools that offer entirely online classes or programs or will not reopen for the fall 2020 semester must complete an operational change plan and submit it to SEVP@ice.dhs.gov no later than July 15, 2020. The subject line must read: "Fall 2020 (Fully Online/Will not Reopen) – School Name and School Code."
- Certified schools that will not be entirely online but will reopen in the fall using any of the following educational formats must update their operational plans by submitting the details to SEVP@ice.dhs.gov by Aug. 1, 2020, with the subject line: "Fall 2020 (in person/hybrid/modified session) – School Name and School Code," and state whether they will utilize:
- solely in-person classes, or
- delayed or shortened sessions, or
- a hybrid plan combining in-person and remote classes
- Schools should update their operational plans within 10 calendar days if circumstances regarding their operational class structure posture change.
What Happens Next?
On July 8, 2020, Harvard University and the Massachusetts Institute of Technology (MIT) filed a lawsuit against the U.S. Department of Homeland Security (DHS), ICE, Chad F. Wolf (Acting Secretary of DHS) and Matthew Albence (Acting Director of ICE) seeking to preempt enforcement of ICE's Announced Modifications prohibiting foreign national students studying in the U.S. from taking more than one online course or three credits through an online course for the fall 2020 semester, thereby requiring foreign national students to leave the U.S., transfer to a school offering in-person classes or reduce their course load. The complaint specifically asserts, in paragraph 9, that "By all appearances, ICE's decision reflects an effort by the federal government to force universities to reopen in-person classes, which would require housing students in densely packed residential halls, notwithstanding the universities' judgment that it is neither safe nor educationally advisable to do so, and to force such reopening when neither the students nor the universities have sufficient time to react to or address the additional risks to the health and safety of their communities. The effect – and perhaps even the goal – is to create as much chaos for universities and international students as possible."
The next step of determining the enforceability of ICE's Announced Modifications is for the courts to decide.