This blog was updated on July 8th to reflect the Harvard and MIT lawsuit against the Department of Homeland Security and Immigration and Customs Enforcement. 

U.S. Immigration and Customs Enforcement (ICE) announced a policy change on July 6 that will substantially disrupt higher education for the fall semester. This major change in policy was issued without any opportunity for notice and comment by the public.

Despite the resurgent COVID-19 pandemic, ICE announced that it will no longer continue to allow 100% online studies programs for F-1 (academic) and M-1 (vocational) students. ICE has directed international students who presently participate in 100% online studies programs must either (1) transfer to an ICE-approved educational institution that allows hybrid (online and in-person) or fully on-campus, in-person courses, or (2) leave the U.S. or (3) remain in the U.S. without the underlying support of the school and suffer the possible initiation of removal (deportation) proceedings. ICE also indicated that it would publish a temporary or interim final regulation to a similar effect.

Prior to the July 6 announcement, ICE’s Student and Exchange Visitor Program (SEVP) instituted a temporary COVID-19 exemption regarding a 100% online study policy for the 2020 spring and summer semesters. With universities closing their dorms and abruptly canceling classes, international students were placed in difficult positions. Some of these students were unable to travel home due to travel restrictions. Fortunately, many were welcomed by classmates or assisted with arrangements by their schools, with the initial exemption allowing these students to continue residing in the U.S. during the COVID-19 emergency. Specifically the exemption permitted F-1 and M-1 students to take more than one online class (normally only one is allowed) and still maintain nonimmigrant status.

However, the July 6th directive reversed course and is now wreaking havoc on our already fragile higher education system. It will increase the economic pressure on colleges and universities, already struggling financially. Broader implications include setting the U.S. back a step in the race for global talent. The reversal in policy came just as schools began announcing decisions on fall classes, without any inclination of the actual effect their decisions would have on an international student in light of the new online related mandates. As the COVID-19 pandemic worsens in some regions of the country, many schools have been forced to cancel in-person classes. Universities are also facing the loss of foreign students who are unable to participate in remote learning from their home countries for various reasons, including time differences and lack of available technology. Schools already working to balance COVID -19 safety concerns with educational goals are now further burdened with obligations to serve their international student communities.

On July 7, 2020 SEVP issued Frequently Asked Questions for SEVP Stakeholders about Guidance for the Fall 2020 Semester in an attempt to address the numerous questions from stakeholders, students, and designated school officials. Due to the evolving nature of the situation it is likely this document will be further updated. We are also hopeful that future guidance will address queries relating to Optional Practical Training (OPT).

On July 8, 2020 Harvard and MIT filed a lawsuit alleging violations of the Administrative Procedure Act seeking injunctive relief. Harvard President Lawrence Bacow issued a statement  and said that the order came without notice and that its “cruelty” was surpassed only by its “recklessness.”

“It appears that it was designed purposefully to place pressure on colleges and universities to open their on-campus classrooms for in-person instruction this fall, without regard to concerns for the health and safety of students, instructors, and other,” Bacow said in a statement Wednesday. “This comes at a time when the United States has been setting daily records for the number of new infections, with more than 300,000 new cases reported since July 1.”

It is expected that other universities and stakeholders will be considering litigation, as well as the filing of amicus briefs.

Seyfarth attorneys in the firm’s Immigration Compliance & Enforcement group and Government Relations & Policy group are advising on all options for schools (and students), including structuring hybrid programs for the fall, and also advocacy and litigation under the Administrative Procedure Act and injunctive relief. If you have questions or concerns, please contact Dawn Lurie, Leon Rodriguez, Angelo Paparelli, or Randel Johnson.