ICE REQUIRES F-1 STUDENTS TO ATTEND IN-PERSON COURSES BEGINNING FALL 2020, DESPITE COVID-19

On July 6, 2020, the Student and Exchange Visitor Program (SEVP) announced the exemptions it had previously provided for nonimmigrant students in response to COVID-19 would end for the upcoming fall semester. These exemptions had allowed students on F and M visas to take more online courses than generally permitted during the spring and summer semester, when most colleges and universities switched to remote learning in response to COVID-19. As the fall semester approaches, many of these schools are still planning to operate remotely in the interest of public health and safety. Due to SEVP’s recent announcement, if you are a student in F or M nonimmigrant status, you should consider the following scenarios to ensure you are enrolled in a program that complies with the new restrictions before that time.

1. 1. If your school is operating entirely online for the fall 2020 semester, you must either depart the country or transfer to another school with in-person instruction to remain in lawful status. 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. Students in the United States and actively enrolled in these programs must either depart the country or transfer to another school that meets the requirements.

 2. If your school adopts a hybrid model, you must obtain a new I-20 certifying the program complies with the new requirements by August 4, 2020. 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, with proper certification to SEVP. This does 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.

3. 3. If your school is operating under normal in-person classes, the old rules apply to you. Nonimmigrant F-1 students attending schools operating under normal in-person classes are bound by existing federal regulations. Eligible F-1 students may take a maximum of one class or three credit hours online.

5. 4. If you are working pursuant to Optional Practical Training (OPT) or a STEM Extension OPT, you should not be affected by these changes unless you plan to return to coursework. Students working on OPT will not be impacted by the new rules. However, if a student is currently on OPT and plans to enroll in a course of study thereafter, he or she must ensure the school offers in person coursework or provides a hybrid learning model in compliance with the rules stated above.
7. 5. If you are enrolled in Curricular Practical Training (CPT), you must communicate with your school and your employer. Students enrolled in a school or program that changes to fully online course of study may need to transfer schools to avoid losing their F-1 nonimmigrant status and their work authorization. Students enrolled in a school or program that changes to a hybrid model must ensure the school is able to meet the new I-20 attestation requirements prior to August 4, 2020 and confirm this with their employer.

Foreign students pay over $9 billion to universities in the U.S. each year, and U.S. universities are dependent on their tuition. As a result, despite the recommendations of health experts, U.S. universities have already begun responding to the new directive by adjusting their plans of only offering distance learning and will be offering some in-person courses to ensure that their F-1 students are complying with the law and can maintain their status.

Furthermore, on July 8, 2020, Harvard University and Massachusetts Institute of Technology (MIT), two universities with large F-1 student populations, filed a lawsuit seeking a temporary restraining order prohibiting enforcement of SEVP’s July 6 directive, and other universities are planning to follow and also file lawsuits. A decision on these lawsuits may take several weeks, so F-1 students should still be prepared to comply with these requirements ahead of the fall semester in the event that the courts do not block them. If their university is not willing or able to comply by offering some in-person courses, the student may consider transferring to a different school which offers in-person courses.

If you have questions about how the new restrictions might affect you, please contact one of our attorneys at Minsky, McCormick and Hallagan, P.C.