The Trump administration, in response to a lawsuit filed by Harvard University and Massachusetts Institute of Technology, as well as several other suits, agreed to rescind its surprise Immigration and Customs Enforcement (ICE) directive. We previously blogged about ICE’s Student and Exchange Visitor Program (SEVP) July 6th announcement, prohibiting foreign students from studying in the United States where their colleges and universities had canceled in-person class instruction.
Dozens of colleges and universities, including Brown University, Cornell University, Princeton University, and the University of Pennsylvania, as well as several prominent U.S. companies, filed an amicus brief in support of Harvard’s motion for a preliminary injunction. The hearing had been slated for July 15th, in front of Massachusetts federal judge, Allison D. Burroughs, but concluded in just a few minutes after acknowledgments by both parties, Harvard/MIT and U.S. Department of Homeland Security, of having reached an agreement. This agreement ends a huge disruption to the lives of highly stressed international students and already stretched universities.
In defense of the ICE directive, Acting Deputy Secretary of Homeland Security Ken Cuccinelli had said the rule was more flexible than the long-standing ICE rules on online classes, allowing for only one class a semester. He also said the new rule was meant to “encourage schools to reopen.” Others claimed it was an attempt to bully universities into opening without regard to students’ and faculty’s health and safety.
What This Means For Nonimmigrant Students, Schools and Employers
SEVP posted updated Frequently Asked Questions for SEVP Stakeholders about COVID-19 on July 15th which confirm that they are applying the original COVID-19 accommodations announced on March 13th. This guidance permits F-1 and M-1 students to participate in online classes, and still maintain their nonimmigrant visa status.
Q. Our school has switched to fully online instruction but not all courses will be offered; some courses will be canceled due to inability to deliver via online means. Will students be excused from meeting full course of study requirements if the classes they need are not being offered?
A. Yes, full course of study requirements can be waived as a direct result of the impact from COVID-19. This information should be reported in a school’s procedural change documents submitted to SEVP, as described in Broadcast Message: COVID- 19 and Potential Procedural Adaptations for F and M Nonimmigrant Students. If this is amaterial change to previously submitted documents, schools should resubmit those documents as part of their submission to SEVP.
The FAQ also discusses the relaxation of the “five month rule” and confirms that students who are taking a full course of study from overseas should remain active in SEVIS. This means that students working on Optional and Curricular Practical Training Programs (OPT and CPT) should not encounter any issues continuing in employment, for now. Such flexibility is critical as schools are struggling to balance safety with educational responsibilities.
The Legal Challenge
The suit focused on the Administrative Procedure Act, a law outlining the process government agencies must follow when they create and issue regulations. The suit also alleged the ICE directive violates the requirement to provide a notice and comment period before rulemaking. We know that the Administration heard from many groups beyond those involved in the lawsuit, and this reversal does show how concerted, targeted activity, quickly marshaled, can at least on some occasions turn misguided decisions around. A lesson for the future, perhaps.