It has recently been announced that temporary procedural adaptations related to online courses permitted by the Student and Exchange Visitor Program (SEVP) during the height of the COVID-19 crisis will be modified for the fall 2020 semester. While there will still be accommodations to provide flexibility to schools and non-immigrant students, as institutions across the world reopen, there is a need to resume the carefully balanced protections implemented by federal regulations. In this article, we will answer the most frequent questions about the new regulations, since fall 2020 may bring huge changes for a foreign student.
On July 6, 2020, the U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) announced that it would no longer provide exemptions for international students that take online classes during the fall 2020 semester due to the pandemic caused by COVID-19. They also issued a Broadcast Message with more detail. They indicated that the rule will be published in the Federal Register as a Temporary Final Rule.
This will not be possible since the press release by SEVP concerning Fall 2020 states: “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.”
SEVP defines the “hybrid model” as a mixture of online and in-person classes. The new guidance suggests that students that plan to take classes under a hybrid model 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” that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.
We believe that in this case student still falls in the hybrid model and can remain in the United States since some classes were in person and others were online. The ICE Press Release and Break Out Memo define the hybrid model as a mixture of online and in-person classes, so our interpretation is that a foreign student in a hybrid or in-person setting at the start of the fall 2020 semester could remain in the United States if the classes were to be held remotely after Thanksgiving. Under regulations at 8 CFR 214.2 (f)(6)(G) “For F-1 students enrolled in classes for credit or classroom hours, no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be conducted toward the full course of study requirement if the class is taken online or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to the completion of the class”.
Yes, you would have to leave the United States in that case. Although this new guidance is a departure from the guidance issued in spring and summer to help mitigate the spread of COVID-19, it indicates that you must have in-person classes or a combination of in-person classes and online classes to stay in the United States. All of these classes must make normal progress in your degree program.
Regulation 8 CFR 214.2 (f)(G) states in part: “For F-1 students enrolled in classes for credit or classroom hours, no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be conducted toward the full course of study requirement if the class is taken online or through distance education and does not require the student’s physical attendance for classes, examinations or other purposes integral to the completion of the class…” The new ICE announcement serves as a temporary exemption to the one class/three credit online limit. This means that a foreign student who is in a hybrid model in fall 2020, as defined by ICE, complies.
The government may use its discretion to relax the regulation. Due to the pandemic, the government previously allowed students to take online courses over these regulatory requirements. Keep in mind that discretion is a powerful tool in immigration law and it has been used many times in history to protect people during emergencies.
The Immigration and Nationality Act (INA) or immigration statute provides a list of reasons a person may be deported. International students who are identified by ICE as violating this new policy could be charged under 237(a)(1)(C). This is a provision in the INA that makes a person deportable if they failed to maintain nonimmigrant status. ICE could file a charging document known as the Notice to Appear with the immigration court to initiate removal proceedings.
You should consult with your Chicago immigration attorney and consider alternative options such as a B-2 visa.
You should consult with an immigration attorney and consider alternative options such as asylum.
If you have an F-1 visa, your visa would not be canceled if you are studying from your home country even if your SEVIS record is terminated.
Yes, you do. Guidance from the Department of Homeland Security indicates that we are required to issue you a new I-20 to verify that you are abiding by the ICE guidance. The form must verify that:
Spouses and minor children are “derivatives” to a principal nonimmigrant applicant. This means that if the principal is denied a visa or forced to leave the United States, this also applies to their spouses and minor children.
Our interpretation of the regulations and the definition of “hybrid” is that if classes are offered in-person, international students should attend class in-person.
Our interpretation of the regulations is that this model doesn’t satisfy in-person/hybrid for DHS purposes.
Yes, you can.
ICE has issued conflicting information regarding this question. We believe that students who take online courses from abroad will not remain active in SEVIS. The ICE Broadcast Memo states that: “Only students enrolled at a school that is offering only online coursework can engage in remote learning from their home country. In this case, DSOs should annotate the student’s record to make it clear that the student is outside the U.S. but taking full-time online courses as that is the only choice offered by the school”. This means that only students enrolled in schools that offer only online courses in the fall may remain active in SEVIS while taking classes online from outside the United States.
For any additional information feel free to contact us.