Bar on Online-Only Nonimmigrant Students Faces Court Scrutiny

Updated July 16, 2020: On July 14, 2020, Harvard University’s Office of the President announced that the “United States government withdrew the US Immigration and Customs Enforcement (ICE) directive that, among other things, would have prevented international students from staying in the country if they attend institutions that are holding their courses online this fall. This withdrawal has nationwide effect.”

Accordingly, the U.S. Department of Homeland Security has published updated guidance in its “Frequently Asked Questions for SEVP Stakeholders about COVID-19.” Based on the updated guidance, “SEVP will allow F and M students to temporarily count online classes toward a full course of study in excess of the limits stated in 8 CFR 214.2(f)(6)(i)(G) and 8 CFR 214.2(m)(9)(v), even if they have left the United States and are taking the online classes elsewhere.” SEVP adds that “the temporary provision is only in effect due to COVID-19 and only for schools that comply with the requirement to notify SEVP of any procedural changes within 10 business days.”

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National universities and states across the country filed multiple federal lawsuits this week seeking to invalidate and enjoin implementation of the Student and Exchange Visitor Program’s (SEVP)1 Fall 2020 COVID-19 Guidance, which ended flexibility on online learning alternatives for F-1 and M-1 nonimmigrant university students. SEVP’s July 7, 2020 Directive eliminates prior pandemic-related leeway regarding the number of online credit hours a student may take and remain in lawful status during the fall semester.  The normal regulatory maximum is one online class (three credit hours).2 This is an abrupt reversal of course from SEVP’s earlier March 13, 2020 guidance, which had previously allowed F-1 students to remain in valid nonimmigrant status while utilizing online remote course options during the pandemic, regardless of whether their schools are fully online or operating under a hybrid module.

SEVP’s earlier guidance had directed F-1 and M-1 students to “participate in online or other alternate learning procedures, for a majority of their coursework, and remain in active status” with SEVP due to COVID-19.  The March 13 guidance indicated that this was a “temporary provision” that would remain “in effect for the duration of the emergency.” SEVP acknowledged that the situation was “fluid” and “difficult” and that SEVP would “continue to monitor the COVID-19 situation and adjust guidance as needed.”

SEVP’s new July 7, 2020 Directive (comprising a broadcast news release and set of FAQs), however, states that “[s]tudents attending schools operating entirely online may not take a full online course load and remain in the United States.” In addition, “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.” The July 7, 2020 Directive adds that “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 or potentially face immigration consequences including, but not limited to, the initiation of removal proceedings.”

The most publicized lawsuit, President and Fellows of Harvard College; and Massachusetts Institute of Technology v. DHS,3 seeks to enjoin the new July 7, 2020 Directive and moves for a temporary restraining order, arguing that the policy is not sufficiently justified or explained and is arbitrary and capricious. The lawsuit claims that SEVP adopted substantive new rules without employing notice-and-comment rulemaking, or giving students or universities any indication of policy revision considerations.

On July 10, 2020, the Presidents’ Alliance on Higher Education and Immigration, representing 180 higher education institutions, filed an amicus brief in support of Harvard and M.I.T.'s motion for a temporary restraining order.

The lawsuits principally invoke the Administrative Procedure Act (APA),4 based on the lack of sufficient rationale to justify the sudden policy shift, particularly in light of the more lenient guidelines issued in March that were to last for the duration of the COVID-19 emergency, along with SEVP’s failure to engage in proper notice-and-comment rulemaking without good cause.

The universities claim that SEVP failed to take into account their reliance on the prior guidance while undertaking months-long analysis and planning as to how to manage the pandemic during the fall semester (accounting for F-1 and M-1 students to be continually able to study online), even as the COVID pandemic has worsened, along with the absence of other alternatives.

On July 13, 2020, 17 states and the District of Columbia also sued ICE, requesting a preliminary and permanent injunction. Commonwealth of Massachusetts v. DHS,5 filed in Massachusetts federal court, similarly alleges ICE offered no rationale for this abrupt reversal of its March 13 guidance, which had explicitly allowed exemptions to the regulatory in-person learning requirements “for the duration of the emergency.” This claim again seeks relief under the APA, arguing that the Directive failed to offer a reasoned explanation, consider important implications (particularly reliance on prior guidance), or the evidence that pandemic conditions have not abated. The lawsuit also claims this is a substantive rule which should have undergone the appropriate notice-and-comment rulemaking process.  

Five additional lawsuits have been filed with similar APA claims.

We will continue to monitor for potential court injunctions that may affect SEVP’s July 7, 2020 Directive.

See Footnotes

1 The Student and Exchange Visitor Program (“SEVP”) is a division of U.S. Immigration and Customs Enforcement (“ICE”).

2 8 CFR 214.2(f)(6)(i)(G).

3 See Complaint at 23, President and Fellows of Harvard College; and Massachusetts Institute of Technology v. DHS (D. Mass. July 8, 2020) (No. 1:20-cv-11283).

4 The Administrative Procedure Act (APA) governs the process by which federal agencies develop and issue regulations. It includes requirements for publishing notices of proposed and final rulemaking in the Federal Register and provides opportunities for the public to comment on notices of proposed rulemaking.

5 See Complaint at 30, Commonwealth of Massachusetts, et al., v. DHS, (D. Mass., July 13, 2020) (No. 20-11311).

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.