Please see our July 15, 2020 Alert, DHS Rescinds Policy Change on Temporary COVID-19 Exemptions for Certain International Students for an update to this Alert.
Executive Summary: The U.S. Department of Homeland Security (DHS) recently announced that it is rolling back some of the temporary COVID-19 pandemic exemptions for international students in F-1 and M-1 status that allowed them to take online classes. For the fall 2020 semester, international students attending schools operating entirely online may not take a full online course load and remain in the United States. DHS plans to publish the new procedures and responsibilities as a temporary final rule in the Federal Register.
Background
For the spring and summer of 2020, DHS’ Student and Exchange Visitor Program (SEVP) has temporarily permitted F-1 and M-1 international students to take multiple online courses because of the COVID-19 pandemic. This exemption enabled students to maintain their lawful status even when their universities shifted suddenly to an online-only model. Normally, international students in F-1 and M-1 status are restricted from taking more than one online course per semester.
Who will be impacted by the new rule?
All international students in F-1 (academic) and M-1 (vocational) status who have not yet completed their degree program will be impacted.
- F-1 students attending schools operating entirely online. F-1 students will not be permitted to take a fully online course of study and remain in the United States. The U.S. Department of State will not issue visas to students enrolled in schools or programs that are fully online for the fall semester, nor will U.S. Customs and Border Protection admit these students into the United States. This is a return to normal F-1 rules, which restricted online courses to one course or three credits per term.
- F-1 students attending schools operating partially online and partially in person. F-1 students may take more than one class or three credit hours online per semester. Schools offering such hybrid studies should issue their international students new I-20 forms by August 4, 2020 with the requisite certifications. The new I-20 must certify that the program is not entirely online, the student is not taking an entirely online course load during 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.
- F-1 students whose schools are operating fully online may study remotely from outside the United States and maintain an active SEVIS record. This option is only available to foreign students whose U.S. schools are operating entirely online, not those offering fully or partially in-person courses.
The same restrictions apply to M-1 students.
All schools that have F-1 and M-1 students must now prepare to adhere to the forthcoming final rule.
Schools that will reopen in the fall with solely in-person classes, delayed or shortened sessions, or a hybrid plan of in-person and remote classes must submit their operational plans to SEVP by August 1, 2020.
Schools that offer entirely online classes or programs or will not reopen for the fall 2020 semester must submit an operational change plan to SEVP by July 15, 2020.
All schools must submit updated operational plans within ten days should their operational posture change. For example, it would be a change to operational posture if a university closes its campus and transitions students to online-only classes.
Because the announcement and forthcoming rule relate to taking classes, they do not affect graduates who still hold F-1 status while they work pursuant to OPT or STEM OPT. However, students engaging in a period of CPT work authorization while pursuing a degree will be subject to the new rule and cannot remain in the U.S. if their school is offering only online courses this fall.
What to Expect
While the Temporary Final Rule has not yet been published in the Federal Register, DHS SEVP’s Broadcast Message will impact all schools that have F-1 or M-1 international students. Schools that do not follow the new rule or that do not timely report changes to their program could jeopardize their SEVP certification and their ability to enroll international students in the future.
Noncompliance with the new rule could trigger a violation of the student’s nonimmigrant status. Such a violation could harm the student’s later ability to change to a different nonimmigrant status, extend their stay, reenter the United States after international travel, or pursue lawful permanent residence.
Employers' Bottom Line
If you need assistance in understanding how the forthcoming rule impacts your school or company or have other business immigration questions, please contact Geetha Adinata, gadinata@fordharrison.com, or Charlie Roach, croach@fordharrison.com, in FordHarrison's Business Immigration practice group. You may also contact the FordHarrison attorney with whom you usually work.