Friday, July 10, 2020

International students whose colleges go online may need to leave US [Updated 7/10/20]

The Student and Exchange Visitor Program (SEVP) announced modifications to temporary exemptions for nonimmigrant students taking online classes due to the pandemic for the fall 2020 semester. The U.S. Department of Homeland Security plans to publish the procedures and responsibilities in the Federal Register as a Temporary Final Rule. Key among the changes:

  • Students on an F-1 visa and currently enrolled in a fully online program "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." (Reactions from Harvard, which will operately mostly online, in this CNN story)
  • The implications for students enrolled at one of the many campuses offering hybrid instruction with some classes in-person and others online are less clear. It appears students can take some online courses and remain in the country, so long as the school certifies that the student is not taking an entirely online course load and is taking the minimum number of online classes required to make normal progress in their degree program. (Aaron Reichlin-Melnick from the American Immigration Council analyzes this part of the ICE statement on twitter and here.
  • If courses switch to online-only learning during the semester, students will need to notify ICE within 10 days. They may be able to continue with the online course in their home country but they could not stay in the US to take the course. The unpredictability of the public health pandemic makes this a persistent possibility. (More analysis from Shoba Wadhia's practice advisory here.)

These modifications replace the SEVP temporary exemption permitting higher than usual participation in online courses for the spring and summer semesters 2020 due to COVID-19. The implications are unfolding in real time as universities announce fall teaching plans that could force students to stay off-campus and to learn remotely for semesters at a time, and as international students decide whether to enroll or stay abroad. More on the worry this rule is causing for political and university leadership and for international students in BBC and WSJ .and NYT. national university associations and many universities are formulating statements of opposition. A recounting of the harms to universities of declining international enrollment appears in The Conversation. The State Department issued 388,839 F visas and 9,518 M visas in the fiscal year 2019; the rule particularly impacts students from China.

UPDATE 6/8/20:  Harvard and MIT sue ICE in federal district court to enjoin rule change. Filing here. List of 59 universities signing amicus brief is here. A decision is expected by July 15.

U[DATE 6/10/20; The state of California and the University of California are also filing lawsuits.

MHC

https://lawprofessors.typepad.com/immigration/2020/07/international-students-whose-colleges-go-online-may-need-to-leave.html

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Comments

"The University of California today (July 8) announced new plans to file suit against the federal government for violating the rights of the University and its students when the U.S. Department of Homeland Security (DHS) directed Immigration and Customs Enforcement (ICE) to bar international students from staying in the country if they attend U.S. universities that offer only online courses during the COVID-19 health crisis." https://www.universityofcalifornia.edu/press-room/uc-poised-sue-federal-government-over-new-visa-policy-international-students

Posted by: Kevin Johnson | Jul 9, 2020 4:10:35 AM

https://www.law360.com/immigration/articles/1292415/despite-ice-retreat-threat-to-foreign-students-remains?nl_pk=e12cbf21-680c-444b-893a-b332d709699a&utm_source=newsletter&utm_medium=email&utm_campaign=immigration

Posted by: Ming Chen | Jul 16, 2020 9:00:24 AM

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