GrayRobinson COVID-19 Task Force E-lert: COVID-19: Will Foreign Students Still Be Able to Graduate?

Authored by International law lawyer, Nicolas J. Watkins, Shareholder, Miami

Foreign students on F-1 visas must maintain a full course of study and, in so doing, are prohibited from taking more than one class, or three distance learning credits, per academic term, semester, trimester or quarter.1  In March this year in response to the "extraordinary nature of the COVID-19 emergency" and the then pending closure of universities and colleges nationwide, the Student and Exchange Visitor Program (SEVP) relaxed the one class/three credits limit "for the duration of the emergency", and permitted foreign students to complete their 2019-20 academic year by taking their courses entirely online if their schools closed and stopped in-person classes (March Guidance).2 Under SEVP’s March Guidance, and despite taking more online courses than normally allowed, foreign students were still considered to be taking a full course of study to maintain their F-1 nonimmigrant student status.3

Last week, to the shock and bewilderment of foreign students and school administrators alike, U.S. Immigration and Customs Enforcement (ICE) announced that SEVP would be rescinding its March Guidance for foreign students attending classes this Fall 2020 semester (July Announcement).  Specifically, ICE announced that, starting with the Fall 2020 semester, foreign students will no longer be able to continue their studies in the United States wholly online.

Many universities and colleges have closed their campuses and have transitioned to online teaching as a result of the COVID-19 pandemic.  If implemented, the new policy change would require students to depart the United States if they cannot take in-person classes, and it would cause schools to rethink their online and other alternative learning procedures, or risk losing their international students.  The July Announcement requires universities and colleges to inform ICE of their operational plans no later than Wednesday, July 15, 2020.

The policy change has not gone unchallenged.  Within 48 hours of the July Announcement, Harvard University and MIT filed an action in federal district court for a preliminary injunction, and to vacate and set aside the new policy and reinstate SEVP’s March Guidance.  With the start of the academic year fast approaching and the need for universities to provide notice of planned course changes to ICE by mid-week, oral arguments are scheduled for tomorrow afternoon, with a ruling to follow Wednesday morning.

What Does ICE’s July Announcement Say?

The July Announcement advises that foreign students attending schools with entirely online classes for the fall semester 2020 shall not be permitted to take a full online course load while remaining in the United States.  The announcement further informs schools and students that the Department of State will not issue student visas to students enrolled in schools with wholly online classes, and that U.S. Customs and Border Protection will not permit such students to enter the United States.  The announcement also notifies those foreign students already enrolled in entirely online programs that they "must depart the country or take other measures, such as transferring to a school with in-person instruction" in order to remain in lawful student status.  Penalties for failing to abide by these rules will include "the initiation of removal proceedings."

For those foreign students attending normal, in-person classes, the existing rule applies: Foreign students on F-1 visas may take no more than one class, or three distance learning credits, per academic term.

The July Announcement also takes into account those students who are attending universities and colleges that have a combination of online and in-person classes.  Those students, the announcement advises, will be permitted to take more than one class or three credit hours online; provided, however, that the schools certify to SEVP that (i) the program is not entirely online, (ii) the student is not taking an entirely online course load for the fall 2020 semester, and (iii) "the student is taking the minimum number of online classes required to make normal progress in their degree program."

What Does ICE’s July Announcement Mean for Foreign Students?

Journalists and lawyers have joined students and universities in expressing concerns that the new changes will have an adverse effect on international students in the United States.

The closure of many university and college campuses due to COVID-19, and our ever-increasing use of fast-improving technology, have allowed online classes to substitute for the real thing during these difficult coronavirus pandemic times. Many schools, including Harvard University, have recently announced that they will be operating entirely online for the Fall 2020 semester.  With current law permitting only one class or three  credits online, all foreign students would fall out of status immediately if forced to take entirely online classes. They will have to leave the United States, or transfer to a college or university with in-person instruction. 

What is new, however, is that the July Announcement creates an exception to the existing student immigration regulations and allows students to remain in valid F-1 student status if enrolled in schools that operate with a hybrid of online and in-person classes, provided that the student is taking the minimum number of online classes required to make normal progress in their degree program.  Although this is better than what is permitted under current law – better than permitting only one class or three credits online – critics still decry the announcement, because, even this adjustment in current requirements does not help foreign students when university and college campuses are closed and 100% of classes are online. Many foreign students could decide to take a year off from their studies, and those who are able might even transfer to a school in their home country.  The remainder will have to go home.

What Does the July Announcement Mean for Universities and Colleges?

The impact of ICE’s July Announcement on individual universities and colleges throughout the United States is mostly a financial one. The inability of foreign students to take online classes, in conjunction with the existing travel restrictions on those in certain countries and the difficulties encountered in obtaining visas when embassies and consulates worldwide are closed, will likely cause a substantial drop in revenues received from international students who, typically, pay much more for their schooling than U.S. students.  In turn, universities would need fewer employees and there would be a fall in graduate student teaching assistants.  If the financial damage were to continue, as it might anyway while the coronavirus restrictions are in place, it is also possible that the smaller and more financially marginal universities and colleges might be forced to close their doors. 

An argument might be made that schools could provide at least one in-person class if they really tried.  However, this is not as easy as it might at first appear.  Although students might want to attend in-person classes, is it fair to force professors and instructors to go back to the classroom  in these COVID-19 times?  After all, there is a reason why the university and college campuses are closed.  

Is There a Solution That Will Work for Universities and Students Alike? 

A solution – temporary or not – will be forthcoming when the federal district court in Massachusetts renders its ruling on Wednesday.  But what are the options?  Is there a workable solution? 

In order to prevail in their suit for a preliminary injunction, Harvard University and MIT must satisfy two prongs.  First, they must show that the students would face "irreparable harm" if the new policy change were implemented, and, second, they must show that their arguments are likely to succeed on their merits.  With foreign students falling out of status and thereby being compelled to leave the United States if they cannot find and transfer to another university that provides in-person classes, and with the difficulties to be encountered in obtaining student visas as a result of the closure of U.S. embassies and consulates worldwide, it is easy to see the harm that the implementation of ICE’s July Announcement might cause.  However, whether the universities and colleges will win the argument on the merits is not altogether clear.  Current law only allows one online class anyway, and so the changes described in the July  Announcement actually allow universities and colleges to provide anything short of wholly online classes.

One thing is for sure though, and that is that we will have a better idea about how this is all going to play out after the Massachusetts court’s ruling on Wednesday afternoon.  Stay tuned.

COVID-19 is  a  moving target.  The Immigration world is constantly changing as a result.  Legal issues are arising daily.  Rest assured that we at GrayRobinson are closely monitoring the impact of the pandemic and are responding to all  immigration and other issues affecting our clients as they arise.  We are here to help; let us know if you need us.   

1 8 C.F.R. Section 214.2(f)(5)(i) and (6)(i)(G).

2 SEVP manages schools and temporary foreign students in the F and M visa classifications on behalf of the Department of Homeland Security; it is the program that administers the Student and Exchange Visitor Information System (SEVIS).

3 The July Announcement also refers to M-1 students (those enrolled at vocational or nonacademic institutions); under current law, M-1 students are not permitted to participate in any online classes. This E-lert discusses the impact of the ICE Announcement on F-1 academic students only.