International Students Are at Risk After Latest ICE Pronouncement

The Trump administration’s latest immigration proclamation directly impacts foreign students’ ability to remain in the U.S. and complete their studies.  Since releasing a statement that requires foreign students to attend university classes in-person, Immigration and Customs Enforcement (ICE) has received a lot of pushback from American colleges and universities, individual states, and employers. ICE administers the foreign student immigration program known as the Student and Exchange Visitor Program, or SEVP.

(Editor’s Note – Since publishing this article, US District Court Judge Allison Burroughs announced that the government has agreed to rescind the July 6, 2020 policy directive. Details about the policy directive and the lawsuit are below.  This is great news and a huge relief for foreign students, colleges and universities, and employers. We will update this developing story as we learn more details and whether the Trump administration plans to move forward with an alternative directive.)

What Problem Does the New Rule Create?

The problem lies in the sudden change in procedure. A few months ago, when the COVID-19 pandemic began, ICE allowed a temporary exception to its online study policy for the spring and summer semesters. Before the pandemic, the immigration regulations allowed foreign students to take only a certain number of online classes. If a student took too many online courses, the student could fall out of compliance with the terms of the student visa.

However, on July 6, 2020, ICE and the Department of Homeland Security (DHS) essentially reversed its COVID-19 exceptions without ANY prior notice or input from colleges and universities who had already struggled to design and adjust to a safe, online learning platform. Relying on guidance from ICE and DHS, the higher education system did successfully adjust, only to be blindsided by this July 6, 2020 announcement.

Reaction and Backlash

Within days of the July 6, 2020 announcement, Harvard University and the Massachusetts Institute of Technology (MIT) brought a lawsuit alleging that ICE violated the Administrative Procedure Act (APA) and requested the court to stay enforcement of the new rule. In fact, this is the same strategy that the U.S. Supreme court relied on to prohibit the Trump administration from terminating the DACA program: If the White House wants to do something like upend the entire U.S. higher education system, it must follow the regulations that govern such a process.

As of today, several other universities and the State of California have filed lawsuits against the administration, with hundreds of other colleges and universities signing on. The judge in the case appears to be very concerned about the process ICE followed (if any) in making these new rules and the effect on students, universities, and the broader business and scientific communities. She reviewed several amici briefs from affected parties over the weekend with a hearing expected early this week.

Colleges, Universities, and Students are on Edge

Foreign students are understandably panicked about how this is all going to play out. The U.S. will prevent students who are not in the U.S. and who don’t already have an F-1 or M-1 visa, from entering the U.S. to start their studies. Students who are already in the U.S. or have not left the U.S., face the impossible task of enrolling by August, in a new college or university that will permit in-person learning for at least “some” of the program. Unfortunately, ICE has not defined what “some” means. We don’t know if it means attending class on-campus one day per week, for all courses. Or, does it mean one course must all be in-person if the other courses are online? Will a coaching meeting with an alumnus in a different city count as in-person if the alumnus works in the same field?

Likewise, universities face unprecedented and impossible deadlines for coming up with ICE-compliant curricula for students who do not yet know the classes they will be taking and for reissuing new I-20 forms that comply with ICE’s new rules. One university estimated that it would have to complete 350 forms per day for weeks in order to meet the ICE requirements.

Here’s What We Know

Students must comply with the new rules or leave the U.S. The administration appears not to have thought out the logistical nightmare this would create. Or, if it did, the most certain effect is to drive most foreign students out. Students, who fall out of compliance, simply by attending a school with only online classes, could now face deportation.

Many students may have to return to their home countries in time zones far outside the typical school day or without reliable (or any) internet service through which to access courses. All around, the rule is killing the dream of hundreds of thousands of foreign students of graduating from an American college.

  • The new rule prohibits foreign students from taking a full, online course of study. That means that a foreign student must either transfer to a new school that offers an ICE-approved curriculum or leave the U.S.
  • If the school is offering in-person classes like normal, students may take a maximum of three credit hours online, as before the COVID-19 rules went into place.
  • If the school is offering both online and in-person classes, F-1 students can take more than the three credit hours online if the school certifies to SEVP, using Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, that:
    • The program is not entirely online.
    • The student is not taking an all-online course load for the fall 2020 semester.
    • The student is taking the minimum number of online classes to make normal progress toward the student’s degree program.

Bottom Line

Students should immediately consult with their adviser on the best course of action to take. Students should also consider what other options they may have to remain legally in the U.S., including making late applications to other universities that have an ICE-compliant plan in place for the fall 2020 semester. We will monitor and update as we know more details.