In a media release issued on July 6, 2020, Immigration and Customs Enforcement (“ICE”) announced a rollback of the protections it afforded to foreign students in light of the COVID-19 outbreak. The July 6 release announced that foreign students will no longer be eligible for F-1 visas or to remain in the United States to participate in online-only courses of study. Coming only six weeks before the start of the fall semester, the guidance has raised serious concerns for premier US universities, for which foreign students provide one of the greatest sources of revenue, already leading Harvard and MIT to file suit challenging the sudden reversal in posture only six weeks before the start of the fall semester. Other major universities, accompanied by business groups and a number of state attorneys general, are considering challenges to the new policy.

The policy change is expected to affect an estimated more than 1 million student visa holders in the United States, as well as others presently outside the United States who have been admitted for the fall semester.  Students currently in the United States and planning to attend schools that have elected to offer online-only classes in the fall 2020 semester “must depart the country or take other measures, such as transferring to a school offering in-person instruction to remain in lawful status” per the release.

The guidance rescinds temporary policy changes announced by ICE in March 2020 in response to the closure of most university campuses across the United States. Among other measures, the agency had temporarily suspended a longstanding rule that had limited student visa holders to a single online course of no more than three credit hours per semester, thus allowing foreign students to maintain their F-1 visa status while attending courses administered exclusively online as a result of COVID-19.

The ICE media release confirms that students attending schools during the upcoming semester adopting a mix of online and in-person classes will be allowed to take more than one class or three credits online if the schools certify to ICE that their academic programs are not purely online. The new standards, set to be published in the Federal Register as a Temporary Final Rule, require schools to certify that the student is taking the minimum number of online classes required to make normal progress in their degree program. Compliance with this requirement would require the universities to issue a new Form I-20 certificate for each of the potentially thousands of their students on F-1 visas and to do so within 21 business days of the July 6 announcement by ICE.

The July 6 announcement already has prompted at least two schools, Harvard and MIT, to file a lawsuit challenging the new, yet to be published, rule, which other universities may elect to join. As noted in the complaint, filed in federal court in Boston on July 8, 2020, the July 6 media release directs “[s]chools that offer entirely online classes or programs or will not reopen for the fall 2020 semester must complete an operational change plan and submit it to” ICE “no later than Wednesday, July 15, 2020.” The lawsuit alleges violation of the Administrative Procedure Act (“APA”) , in that the new directive is arbitrary and capricious; imposed with no reasoned basis that could justify the policy; and not in compliance with the APA’s requirements for notice and comment rulemaking.

State attorneys general and the business community also have vilified the new policy, “As our colleges and universities navigate this unprecedented pandemic and grapple with how to continue teaching students, the Trump Administration has found ways to create more uncertainty and disruption,” Massachusetts Attorney General Maura Healey said in a statement. “Massachusetts is home to thousands of international students who should not fear deportation or be forced to put their health and safety at risk in order to advance their education.” “No public good is served by these threats to deprive thousands of students at the University of Massachusetts from continuing to make valuable and necessary contributions to the economy of the Commonwealth and the prosperity of the nation,” quotes a statement by University of Massachusetts President Marty Meehan written on July 7. “Beyond the human toll this guidance takes on our students, the impact on the economic interests of the Commonwealth and nation will be negative and potentially irreversible,” writes Meehan.  Even the State Department appears to be at odds with the shift, coming at a time when students and schools have relied to their detriment on the continuation of the COVID-19 exemption.  In a broadcast message posted on Tuesday evening, the State Department wrote, “The United States has long been the destination of choice for international students, and we are pleased that many international students who had planned to study this fall in the United States may still have the opportunity to do so.”

The policy reversal comes on the heels of the  visa ban by which the Trump administration suspended visas for temporary workers.  While that ban did not include F-1 students in the visa freeze, it signals that regulations designed to restrict optional practical training for foreign students may be in the offing.

In this environment, businesses who employ foreign students should advise each student to liaise directly with the student’s Designated School Official.  Moreover, it is important to caution foreign students currently in the United States not to travel abroad until more complete guidance is available from the government and school officials.