The Volokh Conspiracy
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ICE's Policy of Excluding Online Students isn't "New"
Universities should have been prepared for the possibility that ICE would not continue to decline to enforce an existing rule.
I've seen countless stories about ICE's "new" requirement barring student visas for students who would be taking only online classes (e.g., NPR). The idea that this is "new" is false. [Added: A commenter claimed that no one is claiming the rule is new. Many reporters have. Meanwhile, the dean of Yale Law School, who should certainly know better, writes as if requiring in-person classes for foreign students is some novel assault on the academy, rather than a longstanding regulation, to wit, "The policy is also flatly inconsistent with the core tenets of academic institutions. Knowledge knows no borders, and an intellectual culture depends on inclusion and openness to thrive."]
Foreign students have long been required to take a "full course of study" to fulfill visa requirements. The longstanding rule is that a study may take only one online class per semester as part of the full course of study. ICE *may* allow a student to take more than one online course, but any additional course must be taken in the physical presence of a university employee. Here is the DHS webpage from 2012, in the Obama years:
An F-1 student may only count one online or distance education course without the physical oversight of a school employee (or the equivalent of three credits) toward a full-course of study per academic term. F-1 students may be eligible to take more than one online class to maintain their status as long as the class is physically proctored or monitored by a school employee.
ICE waived the rule for the Spring and Summer 2020 semesters due to the Covid emergency. Given that Congress has now had four months to address the issue but has not, it's not clear that ICE would be legally justified in asserting a continuing "emergency" that would allow it to ignore a binding regulation. [ADDED: And what ICE has announced isn't even a full reversion to the existing rule; instead of requiring students to take all but one class in-person, it allows students to take all but one class online.]
In any event, given that the regulation is clear that foreign students may not stay in the U.S. on student visas if they are taking online only classes, and given that universities knew they may have to go all online this Fall, why are so many university "leaders" acting like the government actually enforcing the rule once the immediate emergency has passed is a complete surprise? Surely it was *possible* that ICE would agree to continue to not enforce a rule, but surely any decent university lawyer would have understood that it was not a certainty, and would have been advising the provost to make contingency plans for foreign students.
For what it's worth I (a) feel bad for the foreign students caught up in this mess; (2) am no expert in how much discretion ICE has to waive rules and under what circumstances; and (3) generally oppose executive branch agencies ignoring or changing the law on the fly for policy reasons, absent true emergency.
[Cross-posted with minor modifications from Instapundit.]
UPDATE: The ICE announcement suggests that they are enforcing the visa exclusion if a student is only taking online classes. Taking one in-person class, or even an independent that requires a meeting or two with a faculty member, may suffice to allow a student to keep his visa. On the one hand, this means that the enforcement policy is much less draconian that has been portrayed. On the other hand, it raises the question of why, if ICE could limit enforcement in this manner, it couldn't simply extend the waiver.
On a related note, people have forwarded me emails from university presidents who should know better stating that enforcing the rule is hostile to "immigrants." There is little doubt that the Trump administration is hostile to immigrants, but visitors here on student visas are not "immigrants."
Note: post edited as noted, and the update edited to reflect further investigation.