The Volokh Conspiracy

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No Visas for New International Students in Fully Online Program

ICE simply cannot let it go


I blogged previously about ICE's attempt to rescind its COVID-19 related exemptions at the eleventh hour and the ensuing legal battles here, here, here, here, and here. Just when it appeared that matters had calmed down and that international students would be able to be present in the United States whatever their universities end up deciding regarding online instruction, headlines hit today that new international students would in fact not be eligible for visas if their school decided to be fully online from the start of the academic year.

In what purports to be a clarification of the exemptions proclaimed in March, ICE issued the following document mere weeks before most universities are scheduled to resume their sessions. It states that visas would only be issued to students not yet in the United States if they will take at least one class in person or if their hybrid classes have a significant in-person component. While universities like Harvard fought for international students recently, there is a sense that some of these institutions may be throwing in the towel to at least an extent when it comes to the question of new students.

This is too bad considering the fact that the arguments that gave rise to the Harvard/MIT lawsuit still apply here: many of the students involved have made financial and other investments (taking out loans, signing leases, etc.) in reliance on the March exemptions. These guidelines spoke of schools rather than students and created the appearance that all international students could attend even online-only programs within the United States as long as COVID-19 is raging. Furthermore, the issue of bad incentives remains the same I have discussed previously: universities that heavily depend on the tuition income of international students (perhaps more so than wealthy institutions like Harvard) may try to scramble to create at least one in-person course option for new international students even if public health factors would militate otherwise.

This is another move by the federal government that yields few benefits and many downsides both to physical safety and to the national economy. Whether any institution of higher learning will pick up the litigation baton that Harvard seems to have dropped remains to be seen.