On Monday, U.S. Immigration and Customs Enforcement (ICE) issued new modifications to the temporary exemptions for F-l and M-l nonimmigrant students taking online classes due to the pandemic for the fall 2020 semester. These new guidelines are intended to be published as temporary final rules and will impact both institutions of higher education and independent schools with international student populations, therefore creating further challenges for schools developing their reopening plans for the fall.

These new modifications to the Student and Exchange Visitor Program (“SEVP”) for the fall 2020 semester include the following:

• Nonimmigrant students attending schools operating entirely online may not take a full online course load and remain in the United States. Active students currently in the United States enrolled in entirely online programs must leave the U.S. or transfer to a school with in-person instruction to remain in lawful status and avoid facing possible deportation.
• Nonimmigrant students attending schools operating under normal in-person classes are bound by existing federal regulations. Under these existing regulations, eligible F-1 students may take a maximum of one class or three credit hours online.
• Nonimmigrant students attending schools adopting a hybrid model—i.e., a mixture of online and in-person classes—will be allowed to take more than one class or three credit hours online. However, these schools must certify to SEVP that the program is not entirely online, that the student is not taking an entirely online course load, and that the student is taking the minimum number of online classes required to make normal progress in their program. This notice must be made to SEVP by August 1, 2020.
• If a school changes operations mid-semester to go entirely online, or a nonimmigrant student changes course selections to take an entirely online course load, such nonimmigrant students will be required to return home or transfer to a school with in-person instruction to remain in lawful status.
• For the fall 2020 semester, only F-1 and M-l students outside the United States enrolled at a school that is solely offering online coursework can engage in remote learning from their home country. Such students may remain in active status in SEVIS if they are taking online courses and are able to meet the normal full course of study requirements or the requirement for a reduced course of study.  Significant for schools is the modification stating that F-l and M-1 students may not engage in remote learning from their home country if their school offers any in-person classes.

For all international students attending schools in the United States in fall 2020, designated school officials must issue new Forms I-20 in SEVIS by August 4, 2020 to each student certifying in that:

• the school is not operating entirely online;
• the student is not taking an entirely online course load for the fall 2020 semester; and
• if applicable, that the student is taking the minimum number of online classes required to make normal progress in their degree program.

Priority should be given to issuing new Forms I-20 to students outside the U.S. who need new F-l student visas to enter the United States.

Other Key Dates:

• SEVP-certified schools offering either entirely online classes or not reopening for the fall 2020 semester must submit an operational change plan to SEVP by July 15, 2020.
• Certified schools that will reopen in the fall and offer solely in-person classes, delayed or shortened sessions, or a hybrid of in-person and remote classes must submit an operation plan to SEVP by August 1, 2020,

Since the issuance of these modifications, Harvard University and the Massachusetts Institute of Technology have filed a lawsuit asking a federal court to block ICE’s new modifications, as many classes will be held online this fall.

As we wait to see if there will be further guidance or legal developments on this issue, schools should carefully review the new changes and analyze how they may affect their international student populations and plans for next year.  Please continue to monitor our Coronavirus (COVID-19) Resource Center for updates concerning COVID-19. If you have any specific questions regarding these new modifications, please feel free to contact Brenda Eckert, Bradley Harper or Tyler Bischoff.