ICE Announces Plans to Update Online Study Policies for Nonimmigrant Students for Fall 2020 Semester

On July 6, 2020, the U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) announced plans to update its online study policies for F-1 and M-1 nonimmigrant students for the fall 2020 semester. According to the proposed policies, SEVP intends to prohibit F-1 and M-1 students from taking a fully online course load while in the United States during the fall 2020 semester. The updates appear to roll back the temporary exemptions instituted in the spring and summer semesters by the SEVP in response to COVID-19, which allowed F and M students to take more online courses in order to maintain their nonimmigrant status. The rule has no immediate effect. The U.S. Department of Homeland Security is expected to publish the updated policy as a Temporary Final Rule in the Federal Register in the coming weeks.

SEVP Policy Updates

The following is a summary of SEVP’s updated online study policy, broken down by program type, for the fall 2020 semester.

Online-only classes

• F-1 and M-1 students enrolled in schools that will operate entirely online may not take a full online course load and remain in the United States. They must depart the United States or consider other options such as transferring to a school that offers in-person classes if they wish to remain in the United States.
• The U.S. Department of State (DOS) will not issue F-1 or M-1 visas to students enrolled in schools or programs that will operate fully online during the fall 2020 semester.
• S. Customs and Border Protection (CBP) will not admit F-1 or M-1 students into the United States who are enrolled in schools or programs that will operate fully online during the fall 2020 semester.
• F-1 students attending schools that are operating entirely online may remain in “Active” status in the Student and Exchange Visitor Information System (SEVIS) if they “are able to meet the normal full course of study requirements or the requirements for a reduced course of study” while in their home countries.

Hybrid model (mix of online and in-person classes)

• F-1 and M-1 students enrolled at a school that will utilize a mix of online and in-person classes will be allowed to take more than one class or three credit hours online if the school certifies to SEVP, through the Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” that:
  • the program is not entirely online;
  • “the student is not taking an entirely online course load for the fall 2020 semester”; and
  • “the student is taking the minimum number of online courses required to make normal progress in their degree program.”
• Note: These exemptions “do not apply to F-1 students in English language training programs or M-1 students” pursuing vocational degrees. Those students remain ineligible for enrollment in online courses.

Traditional in-person programs

• Eligible F-1 and M-1 students attending schools that offer in-person classes are subject to existing federal regulations and “may take a maximum of one class or three credit hours online.”
• F-1 and M-1 students are prohibited from taking a full online course load even if their school shifts, mid-semester, from in-person classes to online-only classes. In that event, the student would be required to depart the United States or consider other options such as transferring to a school that offers in-person courses.

Additional Information

Status violations

Failure to comply with the new policies could result in status violations, which can have a long-term impact on a foreign national’s ability to seek immigration benefits, such as a change of status or extension of stay, among others. In addition, SEVP’s proposed policy specifically warns that failure to comply with the new policies could result in “the initiation of removal proceedings.”

Practical training

The new policies are not expected to have an impact on F-1 students who are working in a period of optional practical training (OPT) as long as the F-1 students maintain lawful status. The new policies may affect F-1 students who are working pursuant to curricular practical training (CPT) if they are enrolled in a degree program that will be online-only or if enrolled in a traditional in-person program, if they would take more than one class or more than three credit hours online. CPT generally requires enrollment and attendance in classes if it occurs during the normal academic year. CPT students will need to obtain updated Form I-20s by August 4, 2020, that demonstrate that their schools are fully compliant.

Reporting

The updated policies regarding online learning place the following additional reporting requirements on schools that have F-1 and M-1 students:

• Schools will need to notify SEVP by July 15, 2020, if they will offer “entirely online classes” or if they will not reopen.
• Schools that will offer in-person classes in addition to online classes will need to submit their fall 2020 semester plans to SEVP by August 1, 2020.
• Schools “should” report any subsequent operational change to SEVP within 10 calendar days of making the change.
• SEVP will continue to allow electronic Form I-20 issuance for the fall semester.

Moving Forward

Several universities in the United States have already announced an intent to move to a fully online model for the fall 2020 semester. If SEVP’s proposed policies take effect, F-1 students will not be eligible to attend those universities and maintain their F-1 student status from within the United States. Moreover, if a university pivots to a fully online model due to a spike in COVID-19 cases, its F-1 and M-1 students will be required to depart the United States or take other measures such as transferring to a different university with in-person classes, or taking medical leave, if eligible.

Ogletree Deakins’ Immigration Practice Group will monitor developments with respect to these and other policy changes and will post updates on the Immigration blog and in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.