[Updated July 24, 2020]. Good news! In response to Harvard/ MIT lawsuit, government has agreed to rescind SEVP's July 6, 2020 policy which had proposed to limit online study from the fall semester by intl students in the U.S. and the incoming students would not have been able to come to study in the U.S. Since then The Student and Exchange Visitor Program (SEVP), an office under U.S. Department of Homeland Security (DHS), has issued a Clarifying Questions for Fall 2020 Based On March 9 Guidance, July 24, 2020.
This revised new policy means:
- DSOs should not issue a Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” for a student in new or Initial status who is outside of the United States and plans to take classes at an
SEVP-certified educational institution fully online.
- As a result, new or initial nonimmigrant students who intend to pursue a full course of study that will be conducted completely online will not be able to obtain an F-1 or M-1 visa to study in the United States.
- If a nonimmigrant student was enrolled in a course of study in the United States on March 9, 2020, but subsequently left the
country, that student remains eligible for a visa since the March 2020 guidance permitted a full online course of study from inside the United States or from abroad.
- The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and otherwise complying with the terms of their nonimmigrant status.
- If a nonimmigrant student was enrolled in a course of study in the United States on March 9, 2020, but subsequently left the
- International students seeking to enroll in a program of study that includes in-person and online components beyond the three-credit limit on online study (hybrid-program) will still be able to maintain F-1 or M-1 nonimmigrant status if pursuing such programs during the fall 2020 school term.
This also means: 1) old policy of March 13, 2020 stands; 2) Universities can conduct online or hybrid program for international students too; 3) students can take more than three credits or full coursework online without jeopardizing F-1 full-time student status; 4) incoming new international students can seek F-1 or M-1 student visa even if their program is hybrid.
Original Blog post:
SEVP had announced that for the fall 2020 semester it will modify the temporary procedural adaptations related to online courses which was permitted by the SEVP during the height of the Coronavirus Disease (COVID-19) crisis. (See SEVP FAQ for July 6, 2020, Broadcast Message: COVID-19 and Fall 2020 and SEVP FAQ of March 13, 2020). This modification means, international students cannot remain in the U.S. or enter the U.S. on F-1 if their fall classes are going to be fully online in response to Covid-19. This abrupt announcement has taken the higher education leaders by surprise. The DHS has said it plans to publish the procedures and responsibilities in the Federal Register as a Temporary Final Rule. Since then SEVP has issued a Frequently Asked Questions (FAQ) for SEVP Stakeholders about Guidance for the Fall 2020 Semester.
There is an ongoing lawsuit by Harvard University and MIT against the government about the policy change (news here, here, here) . Many trade and business associations, major companies, cities and other universities have filed amici curiae (friends of the court) legal briefs in support of lawsuit by Harvard and MIT whereas government has filed its Opposition to 4 Motions for a Temporary Restraining Order and Request for a Preliminary Injunction on July 13, 2020. At 03:00 PM on July 14, 2020, the U.S. District Court for the District of Massachusetts will have a hearing on Temporary Restraining Order (TRO) and Preliminary Injunction against the new policy of SEVP. Some new legal development may come out of this lawsuit.
I. FAQ on Int'l Students- Maintaining student records
Question 1. Are students attending schools that are entirely online barred from attending that school?
Answer from SEVP: No. Students will not be permitted to enter or remain in the United States to attend such schools but they are not barred from continuing to attend all classes at these schools from abroad. This approach balances students’ ability to continue their studies while minimizing the risk of spread of COVID-19 in our communities by ensuring that individuals who do not need to be present in the United States are not physically here.
Question 2. Can continuing F and M students study online outside the United States and remain in Active status in the Student and Exchange Visitor Information System (SEVIS)? Are designated school officials (DSOs) responsible for maintaining these records?
Answer from SEVP: Yes, continuing F and M students may remain in Active SEVIS status while studying online, outside the United States. As these students remain Active in SEVIS, DSOs are responsible for maintaining these student records.
This means a student will remain Active status in SEVIS system even if he or she moves abroad and continues studying online from abroad. The same F-1 student visa can be used to re-enter the U.S.
II. July 6, 2020 News Release on Temporary exemptions for the fall 2020 semester
- 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. NOTE: Immigration law provides that on-line class means only those which do not require the student's physical attendance for classes, or for examination or other purposes integral to completion of the class. So if the course requires in-person exam or requires in-person attendance for project-work, assignments or physical attendance essential for the coursework then that course will NOT be counted as an on-line course/credit.
- 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.
- 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,” (issue a new I-20) 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. This means if the international student takes "one or few courses" in-person (or in accordance with Note under paragraph 1 of Chapter II above) then he or she will not be considered taking a full online course load.
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 should 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 are later required to switch to only online classes, or a nonimmigrant student changes their course selections, and as a result, ends up taking an entirely online course load. Nonimmigrant students within the United States are not permitted to take a full course of study through online classes. If students find themselves in this situation, they must leave the country or take alternative steps to maintain their nonimmigrant status such as a reduced course load or appropriate medical leave.
Due to COVID-19, SEVP had instituted a temporary exemption regarding online courses for the spring and summer semesters (SEVP FAQ of March 13, 2020). This policy permitted international students to take more online courses than normally permitted by federal regulation to maintain their nonimmigrant status during the COVID-19 emergency.
F-1 nonimmigrant students pursue academic coursework and M-1 nonimmigrant students pursue vocational coursework while studying in the United States.
III. Options to continue to stay in the U.S. and work towards the degree
- The university where you are enrolled should run a hybrid model—that is, a mixture of online and in person classes—this will allow taking more than one class or three credit hours online.
- Universities or colleges can make some or most of the coursework such that it requires student's physical attendance for classes, or for examination or other purposes integral to completion of the class. So if the course requires in-person exam or requires in-person attendance for project-work, assignments or physical attendance essential for the coursework then that course WILL NOT be counted as an on-line course/credit.
- Universities or colleges could also offer few of the course as in-person (or in accordance with the Note in Paragraph 1 of the Chapter II above) and remaining courses as online. This way the full course load will be a hybrid and will not be online fully.
- If the university is going to be fully online, then one can plan to start the transfer process to another university or program which offers in-person classes or hybrid model with the mixture of online and in-person classes.
- International students can possibly Change Status to H-1B, H-4, G-4, TN, O, P, Q, L-1, L-2, J, I, E-1/E-2 if the eligibility is met. (work visa)
- International Students can have their employer sponsor their green card or a U.S. citizen or green-card holder spouse file a marriage based-petition, and possibly file for Adjustment of Status application. With a pending AoS one can study, and can work as well if an EAD card is received. or
- Find other employment-based immigration options or family-based immigration options.
IV. March 13, 2020 Covid-19 Guidance from SEVP which had provided the following temporary reliefs and some of these reliefs are no longer available now [invalid so long as these are not in consistent with July 6, 2020 Guidance. Provided here only as a reference]:
- Scenario 1: If a school closes temporarily without online instruction or other alternative learning procedures, the students should remain in active status in SEVIS so long as the students intend to resume their course of study when classes resume. This is similar to short-term breaks in the school calendar when classes are not in session. Schools must notify SEVP of COVID-19 procedural changes within 10 business days.
- Scenario 2: If a school closes temporarily but offers online instruction or another alternative learning procedure, nonimmigrant students should participate in online or other alternate learning procedures and remain in active status in SEVIS. Schools must notify SEVP of COVID-19 procedural changes within 10 business days. Given the extraordinary nature of the COVID-19 emergency, SEVP will allow F-1 and/or M-1 students to temporarily count online classes towards 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). This temporary provision is only in effect for the duration of the emergency and in accordance with the procedural
change documents filed in a timely manner to SEVP.
- Scenario 3: If a school closes temporarily but offers online instruction or another alternative learning procedure, nonimmigrant students should participate in online or other alternate learning procedures and remain in active status in SEVIS. Schools must notify SEVP of COVID-19 procedural changes within 10 business days. Given the extraordinary nature of the COVID-19 emergency, SEVP will allow F-1 and/or M-1 students to temporarily count online classes towards 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 Homeland Security Investigations National Security Investigations Division Student and Exchange Visitor Program United States and are taking the online classes from elsewhere. This temporary provision is only in effect for the duration of the emergency and in accordance with the procedural change documents filed in a timely manner to SEVP.
[This is a developing story, last updated July 24, 2020. ]
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice.
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