On July 6, 2020, the Student and Exchange Visitor Program (SEVP), a branch of the Immigration and Customs Enforcement agency charged with regulating universities that admit foreign students, provided long-awaited guidance for the fall 2020 semester. In an unexpected about-face from previous guidance issued in March 2020, SEVP has now determined that foreign students on F-1 visas cannot attend universities that will be 100 percent remote during the fall 2020 semester.
This new guidance forbids universities from issuing I-20s, mandatory F-1 paperwork, to returning or transfer students and to new students if their programs for the fall 2020 semester will be 100 percent remote. It also forbids U.S. consulates from issuing F-1 student visas to these same students, and forbids Customs and Border Protection from allowing them to enter U.S. land borders.
SEVP has also made clear that F-1 students currently in the United States who were planning to attend 100 percent remote programs for the fall 2020 semester must either transfer to a hybrid or in-person program, depart from the United States or face removal proceedings in immigration court.
Two important limitations should be noted:
- F-1 students in English language training programs or M-1 students pursing vocational degrees are not permitted to enroll in any online courses. These students have no accommodations available to them.
- F-1 students who attend fully in-person programs in fall 2020 must follow the standard SEVP regulations, limiting them to three credit hours of online course(s) per semester.
In a broadcast message also issued on July 6 to all universities that admit foreign students, SEVP provided additional information on how it will implement this new policy: F-1 students attending "schools adopting a hybrid model-that is a mixture of online and in person classes-will be allowed to take more than one class or three credit hours online."This three credit hours online limitation had been the long-time standard for foreign students. However, this limitation was lifted in March 2020 guidance as most universities moved to 100 percent online instruction to complete the spring 2020 semester. Advocates and university administrators were anticipating that the March 2020 guidance would remain in place for fall 2020, thus allowing universities and F-1 students flexibility in addressing varying COVID-19 outbreak levels and state public health mandates. Instead, universities will be scrambling to create new hybrid programs, comply with SEVP paperwork requirements, admit transfer students and calm the fears and uncertainties of their students.
The rule change will further dim the hopes of potential F-1 visa applicants, many of whom have been stuck outside the United States waiting for consulates around the world to reopen for visa appointments. Such an abrupt change in policy and procedure will cause confusion and delay among visa officers in determining whether I-20s are properly issued and if university programs are in compliance with SEVP requirements. This mayhem is compounded by the fact that many universities have already announced plans to be fully remote or to start and end fall semesters early due to COVID-19 concerns.
For foreign students already on F-1 visas in the United States whose universities will be fully remote, these students will have to transfer to a different program, a different school or depart the United States. Students in this difficult predicament have a 60-day grace period provided, but it is unclear when the 60-day grace period will commence, as spring semester programs have already been over for six weeks or more. F-1 students also have the option of filing change of status applications in the United States, or pursing an F-1 reinstatement if they are unable to make arrangements to transfer their educational programs in time for the fall 2020 semester.
SEVP has also confirmed that F-1 students engaging in Practical Training, Optional Practical Training (OPT) or STEM OPT are not impacted by this policy update. Specifically, SEVP states the following:
For the fall 2020 semester, continuing F and M students who are already in the United States may remain in Active status in SEVIS if they make normal progress in a program of study, or are engaged in approved practical training, either as part of a program of study or following completion of a program of study.
Challenges for Universities
According to the new guidance, universities must take the following steps to comply with SEVP requirements:
- Within 21 days of July 6, 2020, update and reissue new I-20s to
every foreign student who will attend school in the United States
in the fall 2020 semester to reflect the three new certifications:
- That the program is not entirely online;
- That the student is not taking an entirely online course load this semester; and
- That the student is taking the minimum number of online classes required to make normal progress in their degree program.
- By August 1, schools that will proceed with a hybrid model or an altered semester schedule must update their operational plans and submit them to SEVP.
Universities should be vigilant when updating operational plans to ensure that they meet the SEVP definition of a hybrid program in order to ensure that all I-20s issued will be valid and their students will remain in legal immigration status. It is anticipated that additional guidance will be forthcoming as schools and universities raise their concerns to SEVP and seek to mitigate the havoc and difficulties created by this new policy. Similarly, universities should advise F-1 visa holders in the United States to seek their own immigration counsel, as each student's situation and immigration history will be different.
Foreign students and universities will have difficult choices to make in the next few weeks. For F-1 visa holders, maintaining lawful immigration status is of utmost importance. For universities, developing hybrid programs that meet SEVP guidelines will be key.
Duane Morris attorneys will provide further updates as they become available.
For More Information
If you have any questions about this Alert, please contact Valentine A. Brown, Katherine D. Brodie, any of the attorneys in our Immigration Law Group, any of the attorneys in the Higher Education Group or the attorney in the firm with whom you are regularly in contact.
Originally published July 8, 2020.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.