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United States – New Rules Affect Foreign Students in U.S. Schools

US–New Rules Affect Foreign Students in U.S. School

The U.S. Immigration and Customs Enforcement (ICE) agency announced July 6 that foreign students on F-1 and M-1 visas attending schools operating entirely online will not be permitted to remain in the United States for the fall 2020 semester if their full course load will be conducted online. The ICE announcement directs international students currently in the United States enrolled in online programs to either depart the country or transfer to an educational institution operating with in-person instruction.

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On July 6, 2020, the U.S. Immigration and Customs Enforcement (ICE) agency, which oversees the Student and Exchange Visitor Program (SEVP), announced that foreign students on F-1 and M-1 visas attending schools operating entirely online will not be permitted to remain in the United States for the fall 2020 semester if their full course load will be conducted online.1

To maintain lawful status, the ICE announcement directs international students currently in the United States enrolled in online programs to either depart the country or transfer to an educational institution operating with in-person instruction. ICE further confirmed that impacted students who do not take one of these steps “may face immigration consequences including, but not limited to, the initiation of removal proceedings.” 

WHY THIS MATTERS

International students who are already in the United States and whose universities are not planning in-person classes for the fall semester due to the coronavirus crisis are required to leave the country as soon as possible. As many U.S. universities and colleges are planning to provide primarily online instruction for the fall semester to limit the spread of COVID-19, a large number of international students will likely not be able to transfer to a school that offers in-person instruction before the August 4 deadline.

According to the ICE announcement, students who are overseas and who have made plans to study in the United States for the fall semester would not be granted an entry visa and would not be allowed to enter the U.S. to take online course-work.

Context

The New York Times reported on July 7, 2020, that more than a million international students were issued visas to study in the United States last year, and at some universities, international students account for a third of the undergraduate student body, as well as representing a majority of students in many graduate programs.2

U.S. schools and universities with large international student populations would also be impacted by the new directive. The President of Harvard University, Mr. Lawrence S. Bacow, said July 8 that the new rule “was designed purposefully to place pressure on colleges and universities to open their on-campus classrooms for in-person instruction this fall, without regard to concerns for the health and safety of students, instructors, and others.3

New Ice Directives Impacting F-1 and M-1 Students

Under current regulations, international students on F-1 and M-1 visas enrolled in academic programs are not allowed to take more than one class or three credit hours online per semester. In March 2020, in response to schools adopting emergency operations due to COVID-19, ICE implemented a temporary exemption permitting students to take more online courses than normally allowed while still being able to maintain a full course of study and their F-1 and M-1 nonimmigrant status.4

Below is a summary of the new directives issued by ICE on July 6, 2020:5

—   In-person classes: International students are reminded that those attending schools operating under normal in-person classes may not take more than one class or three credit hours online.

—   Hybrid programs: Students attending schools offering both online and in-person classes will be allowed to take more than one class or three credit hours online, but in no circumstance may the students’ full course of study be online.

—  Schools must issue new Forms I-20 before August 4, 2020: Under this new directive, designated school officials (DSOs) are required to issue new Forms I-20, Certificate of Eligibility for Nonimmigrant Student Status, to each student enrolled for fall 2020, certifying that the school is not operating entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in his or her degree program. This information must be included in the Form I-20 Remarks field in the Student and Exchange Visitor Information System (SEVIS).

The deadline to update and reissue all Forms I-20 is August 4, 2020. When issuing new Forms I-20, schools are instructed to prioritize students who require new visas and are outside of the United States.

—   English classes and vocational programs: F-1 students enrolled in English-language training programs or M-1 students pursing vocational degrees, are not permitted to enroll in any online courses.

—   F-1 and M-1 Students outside of the United States enrolled in online classes may remain in “Active” status in SEVIS if the student is completing his or her online course-work from abroad. DSOs should annotate the student’s record to clarify that the student is outside the United States completing full-time course-work online, and that online study is the only option offered by the school. 

Additionally, ICE directed U.S. consulates abroad not to issue visas to students enrolled in schools and/or programs that are to be conducted entirely online for the fall 2020 semester, and instructed U.S. Customs and Border Protection (CBP) not to permit these students to enter the United States. 

Challenges to New Rules

On July 8, 2020, Harvard University and the Massachusetts Institute of Technology (MIT), filed suit against the Department of Homeland Security (DHS) and ICE in federal court, citing the guidance would prevent many of their international students from remaining in the country while studying online.6 The Harvard/ MIT suit seeks a temporary restraining order and permanent injunctive relief to prevent the government from enforcing ICE’s July 6 directive for the following reasons:

—   The July 6 guidance did not consider the extraordinary circumstances COVID-19 has created for international students;

—   The impact of the July 6 guidance has the potential to immediately and severely impact the well-being of students, faculty, university staff, and the surrounding community;

—   The July 6 guidance reflects an effort by the federal government to force universities to reopen in-person classes;

—   The July 6 guidance violates the Administrative Procedures Act.

Moreover, the state of Massachusetts, which is home to thousands of international students, also intends to file suit against the Trump administration challenging the July 6 directives.7

KPMG NOTE

DHS confirmed that it plans to publish the procedures and responsibilities described in the July 6 announcement in the near future as a Temporary Final Rule in the Federal Register.

The KPMG Law LLP team in Canada is tracking these matters closely.  We will endeavor to keep readers of GMS Flash Alert posted on any important developments as and when they occur.

FOOTNOTES

1  ICE Announcement  (July 6, 2020).

2  M. Jordan, Z. Kanno-Youngs, and D. Levin, “Trump Visa Rules Seen as Way to Pressure Colleges on Reopening,The New York Times, published online on July 7 and updated on July 10, 2020, is available here.  (Note that this is a 3rd party (non-governmental, non-KPMG) website. Providing this link does not represent an endorsement of this website by KPMG.)

Harvard’s President’s statement issued on July 8, 2020.  (Note that this is a 3rd party (non-governmental, non-KPMG) website. Providing this link does not represent an endorsement of this website by KPMG.)

COVID-19: Guidance for SEVP Stakeholders issued by ICE on March 13, 2020. 

5  ICE’s Broadcast Message: COVID-19 and Fall 2020.

6  The complaint filed by Harvard University and the Massachusetts Institute of Technology can be found here.  (Note that this is a 3rd party (non-governmental, non-KPMG) website. Providing this link does not represent an endorsement of this website by KPMG.)

7  Massachusetts Attorney General Maura Healey’s statement can be  on this National Public Radio (NPR) website. (Note that this is a 3rd party (non-governmental, non-KPMG) website. Providing this link does not represent an endorsement of this website by KPMG.)

* Please note that KPMG LLP (U.S.) does not provide any immigration services or legal services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.

 

The information contained in this newsletter was submitted by the KPMG International member firm in Canada.

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