Foreign Students and Remote Learning: What Universities and Schools Need to Know Now

On July 6, 2020, the U.S. Immigration and Customs Enforcement (ICE)’s Student and Exchange Visitor Program (SEVP) announced that it would not continue to provide exemptions for foreign students taking online classes due to the COVID-19 pandemic during the Fall 2020 semester.1 ICE also issued Broadcast Message 2007-01 - COVID-19 and Fall 2020 discussing new procedural adaptations, and indicated that the new rules and procedures will be published in the Federal Register as a Temporary Final Rule. In addition, on July 7, 2020, ICE issued the SEVP FAQs on the Fall 2020 Guidance to provide answers to frequently asked questions from SEVP stakeholders about the program’s guidance for F and M students and SEVP-certified schools for the Fall 2020 semester.

Changes to Previous Flexibility

Existing regulations at 8 CFR 214.2(f)(6)(i)(G)) limit a student on a valid F visa to taking one course, or three credits, online per session/term. In March 2020, SEVP temporarily relaxed its policies regarding online study as U.S. schools moved to online learning for the spring and summer semesters in response to the COVID-19 emergency. Under the relaxed policies, F-1 students were permitted to take more online courses than usual to maintain their full course of study in the United States.

In its recent announcement, SEVP made clear that those relaxed policies will no longer be in effect. During the Fall 2020 semester, 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 (CBP) permit these foreign students to enter the United States. Active foreign 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 or potentially face immigration consequences.

Some flexibility will continue for schools that adopt a “hybrid model” for Fall 2020 (defined as a mixture of online and in-person classes), but the flexibility will not continue for foreign students in the United States studying at schools operating entirely online for Fall 2020. Of course, foreign students attending schools operating under normal in-person classes remain bound by existing federal regulations wherein eligible F-1 students may take a maximum of one class, or three credit hours, online.

New Forms I-20 Required for Hybrid Study

Importantly, by August 4, 2020, schools must issue a new Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, with the requisite certifications to affected students engaging in hybrid study in the United States. F-1 students must obtain a new Form I-20 with the requisite school certifications in order to validly remain in the United States and maintain their student status. The school’s designated school official (DSO) must enter this information in the Student and Exchange Visitor Information System (SEVIS) with a statement in the Form I-20 Remarks field certifying 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. If an F-1 student attends a school adopting a hybrid model, they will be allowed to take more than one class, or three credit hours, online. These exemptions, however, do not apply to F-1 students in English language training programs or M-1 students, who are not permitted to enroll in any online courses

Remote Learning from Outside the United States

Foreign students who are enrolled in a U.S. school offering online-only classes may remain in active F-1 student status in SEVIS while living abroad if they are taking online classes and are able to meet the normal full course of study or a reduced course of study. This accommodation is only available to foreign students whose U.S. schools are operating entirely online. However, these foreign students will not be permitted to enter or remain in the United States to attend such schools.

Reporting Plans for Fall 2020 – Deadlines Approaching

All schools 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, 2020, and schools that will offer an in-person or hybrid program for Fall 2020 must notify SEVP of their plans by August 1, 2020 and include whether they will be: solely in-person classes; delayed or shortened sessions; or a hybrid plan of in-person and remote classes. Schools should report additional subsequent changes within 10 days of the change. Moreover, when a school’s instructional methodology varies by either a program designation or degree or by an instructional site, the school should indicate the differences in its operational plan (e.g., a university’s medical school is hybrid, while a business school is fully online).

Impact on F-1 Students on a Period of Practical Training

The new SEVP guidelines should not affect F-1 students who have completed a course of study and are working in a period of 12-month optional practical training (OPT) or a STEM extension of OPT. However, those students who are enrolled in a course of study and engaging in a period of curricular practical training (CPT) while studying may be affected if their school is only offering online study during the fall semester.

Impact of Status Violations

Noncompliance by F-1 students or their schools with the new policies regarding online learning could result in violations of status, which may affect the ability of F-1 students to change their nonimmigrant status, extend their stay, or reenter the United States in the future, as well as potentially face the initiation of removal proceedings. Schools that fail to timely report changes to their program may also jeopardize their SEVP certification.

Our team of dedicated immigration attorneys remains available to assist with finding unique solutions for universities and schools and their foreign students in these complex and dynamic times.

1 On July 14, 2020, DHS agreed to fully rescind the July 6, 2020 ICE/SEVP policy guidance discussed above. This decision was announced following a hearing involving litigation filed by both Harvard University and Massachusetts Institute of Technology (MIT) in the U.S. District Court for the District of Massachusetts seeking a temporary restraining order and injunctive relief. As a result of the rescission, the status quo based upon SEVP’s earlier, March 13, 2020, guidance will remain in force, which permits F-1 and M-1 students to temporarily count online classes towards a full course of study in excess of the regulatory limits given the extraordinary nature of the COVID-19 emergency.