US issues “horrifying” rule change that requires foreign students to leave the country if their study programme transitions to online-only

Updated 14 July: The US administration announced during a court hearing today that it would rescind the 6 July guidance described here. Please see our more recent post for details.

Updated: Harvard and MIT have filed a lawsuit that seeks to have the 6 July directive set aside. Please see details below.

On 6 July, US Immigration and Customs Enforcement (ICE) announced a rule change setting out “temporary exemptions for nonimmigrant students taking online classes due to the pandemic for the fall 2020 semester.”

The main impact of the new rule is that international students on F-1 and M-1 visas will no longer be permitted to enter or remain in the United States if their programme of study is delivered online.

The rule reverses a previous exception established by ICE that allowed foreign students to preserve their visa status during online studies over the spring and summer semesters.

The ICE guidance explains, “The US Department of State will not issue visas to students enrolled in schools and/or programmes that are fully online for the fall semester nor will US 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.”

The ruling clarifies as well that F-1 visa holders may, as is the case normally, still take one class (up to three credit hours) online as part of a course load that otherwise relies on in-person instruction. Similarly, students enrolled in hybrid programmes that combine online and in-person learning, may preserve their visa status and remain in the US.

To put it mildly, the rule change comes as shock to the international education sector in the US. But it also marks the latest in a series of moves by the US administration to limit legal immigration paths into the United States.

“Today’s guidance issued by US Immigration and Customs Enforcement is harmful to international students and puts their health and well-being and that of the entire higher education community at risk,” said NAFSA Executive Director Esther Brimmer. “Unfortunately, this administration continues to enact policies which only increase the barriers to studying here, and that’s a serious concern. At a time when new international student enrolment is in decline, our nation risks losing global talent with new policies that hurt us academically and economically.”

The new rule also leaves many unanswered questions about how ICE will deal with students who are unable to depart the country because of travel restrictions, limited flight service, or financial hardship.

“On its face, the guidance released today by Immigration and Customs Enforcement (ICE) is horrifying,” said Ted Mitchell, the president of the American Council on Education. “While we would welcome more clarity about international students studying in the United States, this guidance raises more questions than it answers and unfortunately does more harm than good…We urge the administration to rethink its position and offer international students and institutions the flexibility needed to put a new normal into effect and take into account the health and safety of our students in the upcoming academic year.”

NEW: Our statement on the new ICE guidance that would deport international students enrolled in online-only courses: https://t.co/TuhVvTJh4c pic.twitter.com/3hwTZiRSqP

— Presidents' Immigration Alliance (@PresImmAlliance) July 7, 2020

The matter goes to court

On 8 July, Harvard University and MIT (Massachusetts Institute of Technology) filed a legal action arguing that ICE's 6 July directive should be set aside on the grounds that it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The lawsuit asks for a temporary restraining order against the directive, and that it subsequently be permanently revoked in favour of ICE's earlier guidance which permitted foreign students to maintain their visa status during online studies.

Among many other points, the Harvard/MIT legal action pointedly asserts that:

"By all appearances, ICE’s decision reflects an effort by the federal government to force universities to reopen in-person classes."

And argues that to do so, "Would require housing students in densely packed residential halls, notwithstanding the universities’ judgment that it is neither safe nor educationally advisable to do so, and to force such a reopening when neither the students nor the universities have sufficient time to react to or address the additional risks to the health and safety of their communities. The effect—and perhaps even the goal—is to create as much chaos for universities and international students as possible."

The plans for many US colleges and schools are not yet set for the second half of 2020, and indeed any current plans may change as the number of COVID cases continues to surge in many parts of the US. In a sample of nearly 1,100 colleges tracked by the Chronicle of Higher Education, 60% of reporting institutions are currently planning for in-person instruction, 9% are planning to go online, and 24% are preparing for a hybrid model. The remainder have not yet decided, or are still exploring alternate plans.

For additional background, please see:

• “Plans for return to campus still in flux”
• “US suspends several work visa programmes, including H-1B”
• “Projecting COVID-19’s impact on US higher education this fall”