Online-Only International Students May Lose U.S. Visa Status — Analysis and Impact

July 9, 2020

On July 6, 2020, the Student and Exchange Visitor Program (SEVP), a division of U.S. Immigration and Customs Enforcement that monitors foreign nationals on F and M student visas, issued its long-anticipated fall 2020 guidance. SEVP provided further clarification the following day with a new FAQ sheet.

Under normal circumstances, eligible F visa students are permitted to take a maximum of one class, or three credit hours, online. If students stray from the parameters of their visas or otherwise engage in unlawful activity, they become “out-of-status,” meaning they no longer have valid visa status and must depart the United States.

In March, SEVP issued temporary COVID-19 guidance relaxing restrictions on online classes to allow schools with international students the flexibility to offer socially distanced instruction. The COVID-19 guidance allowed F and M visa students to continue their spring classes remotely while staying physically within the United States. It also allowed students to continue classes remotely from their home countries while still maintaining the validity of their U.S. visas.

New Guidance Reverses Course

SEVP’s fall 2020 guidance represents an abrupt departure from the agency’s position in March. In the fall, F and M visa students will not be permitted to remain in the United States to take a full online course load, even if their institution has shifted to operating entirely online. Students currently enrolled in programs that have moved wholly online have been instructed to leave the country or transfer to a school offering in-person instruction in order to maintain lawful status; otherwise, students may face immigration consequences including the initiation of removal proceedings. Students in fully online programs will be permitted to remain enrolled in their U.S. school as long as they attend all classes from abroad.

Any F and M visa students enrolled in schools offering normal in-person instruction are required to comply with pre-COVID-19 regulations, which allow a maximum of one class or three credits online for eligible students.

SEVP also addressed schools offering a “hybrid” model, with some classes in person and some online, but it defined “hybrid” as programs that are not entirely online, and where international students do not take an entirely online course load. It is not clear whether this “hybrid” definition captures programs offered both entirely in person and online. Rather than prescribing certain online and in-person classes as SEVP seems to suggest, many schools are moving to hybrid systems that simply provide video-streaming attendance as an option for classes that will also meet in person. In such a scenario, a student may be enrolled in a school that offers all classes in person, but may attend the classes online for safety reasons.

Gray Areas

SEVP’s concept of a “hybrid” program, and a student’s course load as consisting of rigidly online or in-person classes, fails to appreciate the fluid nature of many classes that may be offered simultaneously in person and online. These classes may fall under “hybrid” or may fall outside the SEVP guidance. The fall 2020 guidance and FAQ sheet are both silent on this possibility.

Fast Facts for Schools

  • SEVP’s COVID-19 guidance will remain in effect through the summer semester. Fall 2020 guidance will supersede it at the start of each school’s defined fall semester, as registered in the school’s I-17 certification paperwork.
  • Schools that will operate online-only are required to submit notification of operational changes to SEVP by July 15, 2020. Schools offering a hybrid or an in-person program must notify SEVP of their plans by Aug. 1, 2020. See “School Reporting and Procedural Requirements.”
  • Designated school officials must issues new Form I-20s by Aug. 4, 2020, to each student who will be entering or remaining in the United States. Each new document must certify in the remarks section that the student: (1) is enrolled in a program that is not entirely online; (2) is not taking an entirely online course load; and (3) is taking the minimum number of online classes required to make normal progress in the school’s degree program.

Will COVID-19 Guidance Be Reinstated?

On July 8, 2020, Harvard and MIT filed suit against the Department of Homeland Security to delay enforcement of SEVP’s fall 2020 guidance, arguing that the new policies were crafted to force schools to hold in-person classes or risk losing their international students. The plaintiffs allege that when SEVP released its more lenient COVID-19 guidance in March, SEVP made it clear that the arrangement liberally allowing online classes would be in effect for the duration of the COVID-19 emergency. In reliance, a number of universities elected to offer an online-only fall semester to preserve the health and safety of students, faculty and staff.

The complaint further alleges that SEVP’s July 6, 2020, guidance has thrown schools into chaos, suddenly saddling schools with new reporting requirements such as submitting an “operational change plan” within nine days of the announcement, and individually updating the Form I-20 of each F visa student based upon the online/in-person status of each student’s classes, despite the fact that some universities may enroll hundreds or thousands of such students.

The plaintiffs have requested that the government revert to the policies set forth in the COVID-19 guidance, and halt enforcement of the fall 2020 guidance.

What Is the Upshot?

Due to the short turnaround time in SEVP’s mandate that schools submit operations plans by July 15, 2020, and update all I-20s by Aug. 4, 2020, schools should proceed as though the fall 2020 guidance will remain in effect until the court has had an opportunity to decide the issue.

Crafting an operations plan submission that provides flexibility to international students while complying with SEVP guidance is in the best interests of the school and the students.

The authors also want to acknowledge the assistance in preparing this article of Armina Manning, a summer associate in McGuireWoods’ 2020 program for law students. She is not licensed to practice law.

McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.