The coronavirus pandemic has seen to the closure of academic institutions across the country.  As a result, colleges and universities have been forced to decide how they will reopen for the fall semester—do they offer in-person classes? Do they only offer classes online? Or do they opt for a hybrid of the two? The model chosen by schools is now not only a matter of education but also one of immigration: on July 6, the government announced that foreign students will not be permitted to enter or stay in the U.S. if their university moves to an exclusively online course model. Students who do not comply risk deportation. 

Specifics of the Modifications

Immigration and Customs Enforcement (ICE) issued a press release regarding the matter, writing that the Student and Exchange Visitor Program (SEVP) “announced modifications…to temporary exemptions for nonimmigrant students taking online classes due to the pandemic for the fall 2020 semester.”  Though these exemptions are currently temporary, the U.S. Department of Homeland Security (DHS) is expected to publish the procedures and responsibilities in the Federal Register as a Temporary Final Rule.

The temporary exemptions determined by SEVP include:

1. Nonimmigrant F-1 and M-1 students attending schools operating entirely online may not take a full online course load and remain in the United States. 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 semester nor will U.S. Customs and Border Protection permit these students to enter the United States. Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status. If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings.

2. Nonimmigrant F-1 students attending schools operating under normal in-person classes are bound by existing federal regulations. Eligible F students may take a maximum of one class or three credit hours online.

3. Nonimmigrant F-1 students attending schools adopting a hybrid model—that is, a mixture of online and in person classes—will be allowed to take more than one class or three credit hours online. These schools must certify to SEVP, through the Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” certifying that the program is not entirely online, that the student is not taking an entirely online course load this semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program. The above exemptions do not apply to F-1 students in English language training programs or M-1 students pursing vocational degrees, who are not permitted to enroll in any online courses.

In March, SEVP instituted a temporary exemption in response to the COVID-19 emergency which let foreign students take more online courses in the spring and summer semesters than would otherwise be allowed by federal regulation to maintain their nonimmigrant status.  As seen above, the modifications announced July 6 are much more limiting. 

Who is affected by these modifications?

The temporary exemptions apply to two types of visas: F-1, which are granted to nonimmigrant students pursuing academic coursework, and M-1, which are granted to nonimmigrant students pursuing vocational coursework.  NBC News reports that an ICE agency spokesperson said that the new rules “should not affect students participating in OPT,” which refers to “the optional practical training program that allows F-1 students who have finished their study to work in the U.S. for up to one year in a relevant field.” In just the 2019 fiscal year, the State Department issued a total of 388,839 F-1 visas and 9,518 M-1 visas. 

According to the Institute of International Education, more than one million of higher education students in the U.S. come from overseas.  Given the cost of higher education in the U.S., the value of foreign students is far from insignificant.  As NPR points out, this value is in fact “quantifiable economically”: one economic analysis found that foreign college and university students studying in the U.S. contributed $41 billion and supported 458,290 jobs during the 2018-2019 academic year.  The coronavirus pandemic has already led to a weakened economy; these modifications could only exacerbate economic loss, an outcome which would certainly affect domestic students as well. 

Response: Critics & Lawsuits

The new regulations do not come without criticism.  After all, leaving for college or university can be challenging enough in pandemic-free circumstances.  Ted Mitchell, president of the American Council of Education, a higher education lobbying group, wrote in a statement that the guidance “provides confusion and complexity rather than certainty and clarity” and called on ICE to allow international students to continue their education, regardless of whether it was online or in-person.  As Immigration Impact notes, other criticisms focus on the fact that the temporary exemptions “force schools to choose between losing international students and risking public health.” Immigration lawyer Fiona McEntee asks, “If students can study online successfully from an academic point of view, why are we forcing them to come into a situation where they could put their health at risk and also the health of their classmates at risk?”

Furthermore, students who are kept from the U.S. may face challenges in their home countries that could impair their learning—from internet connectivity issues, time differences, and inaccessibility to certain online resources. Some students, as discussed by Immigration Impact, may be unable to return to their home country due to financial hardship or pandemic-related travel bans.

It therefore comes as no surprise that this move by immigration authorities has sparked legal action: Harvard and Massachusetts Institute of Technology, for example, filed a lawsuit in the Boston District Court on July 8 against DHS and ICE. The Harvard Crimson states that the “lawsuit seeks a temporary restraining order and preliminary and permanent injunctive relief to bar DHS and ICE from enforcing federal guidelines barring international students attending colleges and universities offering only online courses from staying in the United States.”  Northeastern University—which has the third-highest number of international students in the U.S.—is also joining the lawsuit while Cornell University, Dartmouth College, Duke University, the University of Pennsylvania, and Princeton University will be signing amicus briefs in support of the lawsuit. 

In response to the backlash, White House Press Secretary Kayleigh McEnany said in a press conference that “the policy speaks for itself” and that “You don't get a visa for taking online classes from, let's say, the University of Phoenix, so why would you if you were just taking online classes generally?”

 Keep in Mind

The Chronicle of Higher Education is tracking the reopening plans of over 1,000 U.S. colleges: currently, 60% of schools plan to hold in-person classes while 23% are proposing a hybrid model and 8.5% are undecided. The fact that the majority of schools do not intend to go fully online is undoubtedly favorable to any F-1 and M-1 student, but it is important to keep in mind that school reopening plans may be subject to change.  The state of the pandemic in the U.S. is far from stable and daily case totals continue to break records in multiple states.  ICE mandates schools to update their information in the Student and Exchange Visitor Information System within 10 days of transitioning to online-only classes.