On July 6, the U.S. Department of Homeland Security issued a policy directive requiring international students to take at least some in-person courses in order to be able to remain in the United States. Due to the COVID-19 pandemic, almost all universities in the country have made many of their courses online-only.
The restriction of online courses for international students is nothing new. Historically, international students have been restricted, by federal regulation, from taking more than one course online at any given time. However, as colleges and universities responded to the growing pandemic by moving more and more courses online, the federal government assured universities that enforcement of these regulations would be suspended.
The suspension of enforcement cleared the way for international students to stay in the country, even if their entire course load was online classes. These measures were expected to stay in place, per the Student and Exchange Visitor Program (SEVP, a unit within ICE), “for the duration of the emergency.”
As a result, it came as a shock to many students and educators when the administration changed course without warning, requiring online-only students to leave the country. Predictably, colleges and universities resisted this directive. The first lawsuit opposing it was filed by Harvard and the Massachusetts Institute of Technology days later, followed by similar lawsuits from dozens of universities, 20 states, and the District of Columbia.
The July 6 policy directive stated, among other things, that nonimmigrant students with F-1 and M-1 visas who were then attending schools operating completely online could not take a fully-online course load and remain in the country. The directive further stated that the State Department would not issue visas for students enrolled in fully-online courses for the Fall 2020 semester, and Customs and Border Protection (CBP) would not allow them to enter the country.
They would have to continue with online coursework, knowing that would jeopardize the current well-being and future life and job prospects of their international students; or they could scramble to create in-person courses in just weeks, despite the public health risk that would pose.
The government claimed that “significant national security concerns” compelled the directive, which would remove current international students from the country and prevent others from entering. In a court brief, the federal government claimed, “A solely online program of study provides a nonimmigrant student with enormous flexibility to be present anywhere in the United States for up to an entire academic term, whether that location has been reported to the government...Additionally, such programs could allow a nonimmigrant student to conduct activities other than full-time studying.” The government further asserted that there was no need for a student whose course of study was 100% online to be present in the United States.
Universities and their students swiftly pushed back against the government’s position that students taking online-only courses had no need to enter or remain in the United States. For example, many students required to return to their home countries stated they would be unable to continue research essential to their studies and graduate thesis. Other students would be returning to countries whose infrastructure could not support their continued studies, due to lack of availability of electrical service or internet access.
Still other students forced to leave the U.S. would be separated from loved ones, including children, who were U.S. citizens. Many students would experience financial problems, including the expenses associated with breaking a lease and unplanned travel. And, of course, many students were concerned about exposing family members in their home countries to COVID-19 after a lengthy flight from the United States.
On July 14, it was announced during a hearing on the Harvard/MIT lawsuit that ICE and DHS had agreed to rescind the July 6 policy directive regarding international students with F-1 visas. Those students who have already started their studies in the United States will now be able to remain in the U.S. even if taking courses entirely online.
This is great news for international students who enrich their communities even as they are being enriched by their studies in the U.S. If you are an international student with an F-1 or M-1 visa and you have questions about your situation, we invite you to contact our law office.