RESCINDED! Trump Administration Immigration Guidance that was Set to Impacting F1 Students Attending Online Classes has been Rescinded
July 14, 2020 UPDATE: As a result of a suit filed by Harvard and MIT against the USCIS, existing F-1 international students can once again take online courses and maintain their immigration status. ICE guidance has been rescinded as a result of the Federal court case, President and Fellows of Harvard College et al. v. U.S. Department of Homeland Security et al., case number 1:20-cv-11283, in the U.S. District Court for the District of Massachusetts. It appears that the Harvard suit filed against DHS which was set for oral arguments today but ended swiftly as the government agreed to back off of the new ICE directive which put students taking only online courses (due to Covid-19) in jeopardy of losing their immigration status.
Note that new students however are still not allowed to take an entirely online course load.
Below please find our initial article from July 6, 2020 discussing the intended implementation from ICE barring online-only courses for F-1 students seeking to maintain valid visa status:
On July 6, 2020 ICE (U.S. Immigration and Customs Enforcement) released guidance that puts over 1 million F1 students in a very tough position should their schools only offer online courses in response to COVID-19 health concerns.
This is another major blow to Universities already dealing with a lot of challenges during the pandemic, including financial strains. This is also a tough pill to swallow for U.S. innovation as many F1 students graduate with advanced education to then seek employment in the U.S. to contribute to the U.S. economy.
It is also worth noting that President Trump released this comment via Twitter, “SCHOOLS MUST OPEN IN THE FALL!” President Trump has lately been using COVID-19 as a means through which to try and limit lawful immigration. This ICE announcement comes on the heels of the Trump Executive Order to limit entry of H1B, L, and J Visa holders.
Disclaimer: This post is not legal advice and should not substitute for obtaining legal advice. Note that laws and interpretation of immigration laws change over time. This is very recent guidance so please check back in for updates or sign up for our newsletter below.
What Does the Immigration Guidance Say About Online Classes and the Impact on F1 Students?
The release from ICE provides the following:
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 (The Student and Exchange Visitor Program), 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.
Can F1 Visa Students Enroll in Online Only Courses?
The answer, clarified via this new guidance, depends on the amount of online courses being taken by a student and also whether schools are offering any in person classes or hybrid courses.
If a school is offering only online courses then the answer is no. So a F1 student would not be able to maintain their F1 status should they already be in the U.S. and will not be eligible for a Visa or entry into the U.S. in this scenario.
On the other hand if a school is offering regular in person, on-campus courses, then students attending live courses can, as is allowed under current rules, to enroll in one course for a maximum of 3 units online.
In between there is the hybrid model, which might allow students to take parts of courses online while also having an in-person element. These schools must attest to this hybrid offering through Student and Exchange Visitor Program (SEVP). This could then allow more than the limited 3 units of online courses to be taken and to still be considered to be maintaining lawful status.
How are U.S. Universities Coping with COVID-19?
Although it remains questionable whether reopening campuses is safe amidst the COVID-19 pandemic, which is clearly not under control in many states, there seems to be no relief granted to students in F1 Visa status.
In response to COVID-19, a temporary exemption regarding the limits on online courses was instituted to cover the spring and summer semesters. This allowed F1 students to enroll in more than 3 units and still maintain their nonimmigrant F1 status. This exemption is now clearly no longer applicable heading into fall semesters.
Even top U.S. Universities such as Harvard and many others are deciding only to utilize online courses until the COVID-19 pandemic is under control. This is for the health and safety of all students and for those working on campuses. Unfortunately the federal government, through this release by Immigration Customs and Enforcement, are not providing any leniency which places F1 students in very difficult predicaments and will likely lead to many having to leave the U.S., transfer schools, or not be able to obtain F1 Visas.
F1 students are faced with decisions whether to place their health at stake to attend live classes only to maintain their current F1 immigration status in the U.S. This is a very unfortunate situation for students.
What can F1 Students Subject to the New Immigration Guidance do to Remain in the U.S. in Valid Visa Status?
On top of this difficult news there are also travel restrictions that students need to be aware of even if they need to leave the U.S. as a result of this guidance. So what can F1 students do:
As a first step students need to contact their Designated School Official (DSO) right away to find out if there will be any live courses offered at their schools or if their school offers a hybrid model which has been certified and could allow for additional online courses. If a school is utilizing the hybrid model there may be more flexibility.
If all courses are scheduled to be online courses then the F1 student needs to make the very unfortunate decision whether to change schools, if there is even enough time left to do so while still in status, and whether they even want to do so from a health standpoint. Time permitting, if someone is already in the U.S. in F1 status changing institutions could be an option.
Every student should assess and understand all of their immigration options including options to change immigration status where possible or finding a temporary solution to remain in status and defer studies until COVID-19 is under control.
Students must be sure to maintain their immigration status and understand how this is calculated and when they might be considered to be ‘out of status’ if at all.
Can F1 Students Change Visa Status in the U.S.?
Students can always apply to change their status in the U.S. if they have validly maintained this immigration status. The issue however is often finding a valid option to change into. Some options might include the O1 Visa (based on extraordinary proven ability), the TN, E Visas, and potentially others. It is recommended to review all possible immigration options with an immigrant lawyer to assess all available options.
What Does this Mean for U.S. Employers?
As discussed in an article focusing on the importance of international F1 STEM talent, a study in late 2017 conducted by the National Foundation for American Policy revealed that well over half of graduate-level STEM students enrolled in U.S. colleges and universities who were studying computer science were international students.
The same trend of large international student numbers was found in almost all STEM programs. Further, these STEM graduates tend to focus on finding jobs in tech hubs across the U.S., even further concentrating foreign national talent in these areas, resulting in a high likelihood that job applicants for technical roles will be candidates requiring immigration sponsorship.
International students normally utilize employment authorization obtained via a program called Optional Practical Training, which allows graduates to apply for an employment authorization document in order to work in a position that draws directly from their field of study in the United States.
So this guidance, assuming it will lead to students deciding they cannot maintain their status in the U.S. or deciding not to return to or enter the U.S. to study at all, can harm an already challenged U.S. economy. Further, STEM talent and innovation will be directly harmed.
Speak to ImmiPartner to Figure out Your Options
Feel free to reach out to speak with experienced immigration counsel to understand how you can prepare for what might come to bear. For those new to working with ImmiPartner please contact us here.