On Monday, July 6, the Student and Exchange Visitor Program (SEVP) announced changes to the exemptions for F-1 and M-1 students taking online classes due to the pandemic. Under the new policy, international students may not remain in the U.S. to take a full online course load in Fall 2020 without accruing unlawful presence and being subject to removal (deportation) proceedings. F-1 and M-1 visas or admissions to the U.S. in such status will not be given to students enrolled in schools and/or programs that are fully online for the fall semester.
What is the New Policy?
The SEVP is part of the U.S. Immigration & Customs Enforcement (ICE). A July 6 announcement on ICE’s website lists the changes to temporary exemptions for the fall 2020 semester:
1. Nonimmigrant F-1 and M-1 students attending schools operating entirely online may not take a full online course load and remain in the United States. The U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall semester nor will U.S. Customs and Border Protection permit these students to enter the United States. Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status. If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings.
2. Nonimmigrant F-1 students attending schools operating under normal in-person classes are bound by existing federal regulations. Eligible F students may take a maximum of one class or three credit hours online.
3. Nonimmigrant 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. These schools must certify to SEVP, through the Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” certifying 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. The above exemptions do not apply to F-1 students in English language training programs or M-1 students pursing vocational degrees, who are not permitted to enroll in any online courses.
Schools are instructed to update their information in the Student and Exchange Visitor Information System (SEVIS) within 10 days of the change if they begin the fall semester with in-person classes but later switch to only online classes, or a nonimmigrant student changes course selections, and as a result, ends up taking an entirely online course load.
What are the Effects of the New Policy?
F-1 students pursue academic coursework while M-1 students pursue vocational coursework in the United States.
U.S. federal regulation at 8 CFR 214.2(f)(6)(i)(G) states that F-1 students may take only one online class or 3 credits per session, term, semester, trimester or quarter that count toward their degree or full course of study requirement. 8 CFR 214.2(m)(9)(v) states M-1 students may not count online courses toward a full course of study.
An online course is one that does not require physical attendance for classes, examination or other activities integral to course completion. It is offered primarily through the use of television, audio, or computer transmission.
Previous COVID-19 Exemptions
On March 9, 2020, SEVP issued guidance titled Coronavirus Disease 2019 (COVID-19) and Potential Procedural Adaptions for F and M nonimmigrant students. This prior policy allowed F and M students to continue studies by taking online courses in the spring and summer semesters to meet federal regulations. It allowed them to take more online courses during the COVID-19 pandemic than what is permitted by federal regulations.
There was no requirement prohibiting a full online course load or any other restrictions for F and M students enrolled and already in the U.S. The SEVP permitted schools to change their procedures to comply with state or local state health emergency rules. Schools were not required to give prior notice of these changes and only had to report changes to SEVP within 10 business days.
Updated COVID-19 Exemptions
As of Fall 2020, the updated policy makes in-person classes mandatory for F and M students to meet the full-time course study requirements. This is a shift from the more flexible COVID-19 exemptions that SEVP gave to schools and students for the spring and summer semesters of 2020.
Nonimmigrant Students in the United States
Current F and M students may not take a full online course load and remain in the United States without violating the law. If students find all their courses will be online, they must leave the country or seek to maintain their status such as by requesting authorization for a reduced course load or switching to a school that offers in-person classes. Students who fall out of status and accrue unlawful presence are subject to being put in removal proceedings before an Immigration Court.
Normal In-Person Classes
If the school offers normal in-person classes, F students must comply with federal regulation by taking only one online class or 3 credit hours per session, term, semester, trimester or quarter.
Hybrid Model with In-Person and Online Classes
If the school offers a hybrid model with a combination of in-person and online classes, F students may take more than one online class or three credit hours online. What this really means is that the class includes a mix of online lectures or activities and in-person lectures or activities. Hybrid schools must certify on the Form I-20 that the program is not fully online, the student is not taking an entirely online course load, and the student is taking the minimum number of online classes for Fall 2020 to make normal progress.
No Online Classes for F-1 Students in English Language Training Programs or M-1 Students
None of the exemptions for taking online classes, including the hybrid model, are allowed for F students in English Language training programs or for M-1 students pursuing vocational degrees. The regulations at 8 CFR 214.2(f)(6)(i)(G) and 8 CFR 214.2(m)(9)(v) do not permit online classes for such students.
[UPDATE, July 15, 2020: U.S. district judge Allison D. Burroughs announced on Tuesday, July 14, that the Trump Administration had agreed to back down in a lawsuit over the policy filed by Harvard University and the Massachusetts Institute of Technology. Previous COVID-19 exemptions — which allow foreign students to remain in the U.S. to study even if their classes have all moved online — will continue to apply. The new policy will apply only to incoming students.]
Nonimmigrant Students Outside the United States
The U.S. Department of State (U.S. Embassies and Consulates) will not issue F and M visas to applicants who plan to attend schools that offer courses entirely online in Fall 2020.
Even if they have a valid F or M visa, students will not be admitted to the United States by CBP if all the program-related courses are online only for Fall 2020.
Form I-20 Updates
F and M students must get an updated Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, stating the school is not operating in full online courses mode and the student is not taking full online courses for Fall 2020 semester. This information goes in the Remarks field of the I-20.
SEVP plans to re-issue I-20s for Fall 2020 within 21 business days of the announcement (i.e. by August 4, 2020). Priority will be given to fall 2020 students arriving from outside the United States.
Current F-1 students with approved Curricular Practical Training (CPT) during program studies or with approved Optional Practical Training (OPT) or STEM OPT after program completion may remain in active status and continue their training.
Continuing F and M students, whose schools offer only online courses for Fall 2020, can keep active status if they stay outside the United States and take full online courses to meet visa requirements. They must get a new I-20 indicating they are abroad taking a full course load as the school is offering only online courses for Fall 2020.
Conclusion
The updated policy is not fully clear and schools are awaiting further guidance from SEVP, ICE. The student visa restrictions were introduced soon after the pandemic-related suspension on H, L and J visa and certain immigrant visas.
With the ending of the temporary exemptions that were granted back in March, F and M students may not lawfully remain in the United States if their school goes fully or, in some cases, partly online. To maintain status or to receive a visa or entry to the United States, the student has to take in-person classes or, in the case of F-1 students, classes that involve a mix of in-person and online attendance.
Schools that planned to operate remotely, in COVID-19 times, might need to rethink their strategy to keep their F and M students. Schools that do not at least offer a hybrid model of in-person and online classes will face a significant loss in revenue (tuition and fees from international students).
The updated policy could serve as a catalyst for colleges and universities to reopen campuses, as states continue to lift restrictions that were implemented to curb the spread of the novel coronavirus. There is flexibility in that schools may use hybrid models that are not 100% online to keep F-1 students.
Some international students might not want to bear exposure to the virus by attending classes in person. But, under the new rule, this is unavoidable if they wish to maintain their status or to obtain an F-1 or M-1 visa and be admitted to the United States for the Fall 2020 semester.
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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
