When the COVID-19 crisis was declared a pandemic, schools throughout the United States at all levels developed distance learning plans that relied heavily, if not exclusively, on remote online learning. Due to the urgency of the situation, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE), which manages the Student and Exchange Visitor Program (SEVP) and Student & Exchange Visitor Information System (SEVIS) for foreign students, approved a temporary accommodation that permitted F-1 and M-1 visa students to maintain valid student status while studying online full time. The accommodation was in place for the spring and summer 2020 semesters.

The Latest

As schools prepare for the start of a new school year, ICE has revised its guidance to eliminate the temporary accommodation for full-time online learning. On July 6, 2020, ICE announced a modification of its COVID-19-related guidance. Under the revised guidance, foreign students are permitted to attend programs holding classes in person or through a mix of in-person and online instruction. Students will not maintain valid F-1 or M-1 status if they are enrolled in a program that is exclusively online. Such students will be required to transfer to a school that is providing a compliant program of instruction, or leave the United States.

On July 7, ICE issued updated FAQs with additional information. The FAQs state that “DHS is seeking to maximize flexibility for students to continue their studies, while minimizing the risk of transmission of COVID-19 by not admitting students into the country who do not need to be present to attend classes in-person.” And yet, the administration has publicly acknowledged that the change is intended to encourage schools to reopen for in-person classes or risk losing foreign student tuition.

Next Steps

By August 4, schools must reissue all Forms I-20 to their students after updating SEVIS with a statement in the Form I-20 Remarks field that the school is not operating entirely online, that the student is not taking an entirely online course load for the fall 2020 semester and that the student is taking the minimum number of online classes required to make normal progress in their degree program. All schools also must update their operational plans with SEVP. Schools that will be entirely online or will not reopen for fall 2020 must notify SEVP no later than Wednesday, July 15. Schools that will offer an in-person or hybrid program for fall 2020 must notify SEVP of their plans by August 1.

Takeaway for Employers

For employers who are concerned about remote work for employees authorized to work under the F-1 student visa optional practical training (OPT) or the two-year extension of OPT for STEM graduates, the FAQs expressly approve remote work accommodations. “Students currently participating in OPT, including STEM OPT, may work remotely if their employer . . . can assess student engagement using electronic means.”

BakerHostetler’s immigration practice team will continue to monitor these developments, including Harvard and MIT’s lawsuit to block the new rules, and provide updates as needed.