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Volokh Conspiracy

Visas of Students Taking Online Classes at Risk

ICE announces sweeping changes to the temporary modifications in effect


Yesterday, U.S. Immigrations and Customs Enforcement (ICE) announced–on behalf of the Student Exchange & Visitor Program (SEVP) that acts for the Department of Homeland Security (DHS)–a modification to the temporary exemption regarding the number of online classes that international students are allowed to take before their visa status could be jeopardized. During non-COVID times, there are strict rules on the number of online classes that international students can take, which SEVP relaxed during the spring 2020 semester when many universities were forced to move their courses online due to the pandemic. Even though the pandemic is very much still here, SEVP has now severely curtailed international students' ability to remain in the United States if their university goes fully, or in some cases partly, online. The rules in effect now read [grammar errors theirs]:

  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, 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.

This change, which comes a mere month or two before most universities will resume classes, is highly problematic for many reasons and defies common sense.

First, in many parts of the country the pandemic is causing no fewer problems than it was causing in the spring. Indeed, many states are reporting more new cases per day than ever before. Given that the rules apply nationally and that the nation as a whole continues to experience a high level of problems, now is not the time to impose restrictions on online instruction.

Second, universities heavily rely on the revenue from international student tuition (one estimate places the national figure at $41 billion a year). Endangering that revenue at a time when universities have already taken serious financial hits is both irresponsible and stands on even thinner logical ground than the "foreigners steal our jobs" line of argument.

Third, this announcement could incentivize universities even in precarious areas to opt for reopening in person even if doing so presents large public health dangers. And no university is its own bubble–disease can and will spread to the surrounding communities and far beyond.

Fourth, even for schools that believe (rightly or wrongly) that a safe reopening is possible, circumstances could change mid-semester and force a move to online classes. This could throw international students into a chaotic situation where their status remains unclear or where they have to scramble to attempt returning to their countries when travel may or may not be possible. Indeed, for schools that have already announced a move to online classes, some international students may find themselves stranded as soon as this summer given that travel to some locations is significantly impaired as it is.

Fifth, there is a serious concern about the reliance interests of students who have paid tuition and/or rented apartments with the assumption that the rules from spring would continue into fall–reasonably so, given that it's already July. We may soon see litigation that seeks to protect these interests.

Last, having reviewed all the costs from the rule, what exactly is the benefit? There is no pressing reason to prohibit international students from taking most or all of their classes online. Any students who abuse their visa status (such as by working off-campus in prohibited ways) can lose their benefits either way. We also haven't seen a wave of students coming to the U.S. to take advantage of the online-course exemptions from the spring, for some kind of nefarious purpose or otherwise.

As it is, the United States' handling of the pandemic has made the country lose much credibility. Between that and the tightening of other immigration benefits, such as the refusal to issue most H-1B visas and green cards for the rest of the year that I discussed previously, we risk losing international talent in ways that will greatly hurt both the economy and the progress of science. Hopefully university-based and popular pressure will prevail in having SEVP continue the exemptions from the spring into the fall semester.