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Featured Issue: Guidance for Fall 2020 Semester for International Students

8/10/20 AILA Doc. No. 20070838. Students & Schools
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Due to the COVID-19 pandemic, ICE’s Student and Exchange Visitor Program (SEVP) instituted a temporary exemption regarding the online study policy for the 2020 spring and summer semesters. This policy permitted F and M students to take more online courses than normally allowed for purposes of maintaining a full course of study to maintain their F-1 and M-1 nonimmigrant status during the COVID-19 emergency. On July 6, 2020, ICE announced DHS’s plans to publish modifications as a temporary final rule in the Federal Register to the temporary exemptions for nonimmigrant students taking online classes due to COVID-19 for the fall 2020 semester.

ICE announced the following temporary exemptions for 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 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 or potentially face immigration consequences including, but not limited to, the initiation of removal proceedings.
  • 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 (see 8 CFR 214.2(f)(6)(i)(G)).
  • 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,” that the program is not 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. The above exemptions 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 (see 8 CFR 214.2(f)(6)(i)(G) and 8 CFR 214.2(m)(9)(v))).

On July 14, 2020, in the U.S. District Court for the District of Massachusetts in a hearing involving litigation filed by Harvard and the Massachusetts Institute of Technology (MIT) challenging DHS's July 6, 2020, international student guidance, DHS has agreed to fully rescind the July 6, 2020, ICE guidance and July 7, 2020, Frequently Asked Questions, and rescind all implementing guidance. The status quo based upon the agency's March 13, 2020, guidance will remain in force.

On July 24, 2020, ICE SEVP issued follow-up guidance stating that active F and M students, as well as schools, should abide by SEVP guidance originally issued in March 2020, which enables schools and students to engage in distance learning in excess of regulatory limits due to COVID-19. The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and are otherwise complying with the terms of their nonimmigrant status. SEVP will not issue a temporary final rule for the fall school term.

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