SEVP to End Temporary Rule that Allowed F-1 and M-1 Students to Take All Classes Online

The Student and Exchange Visitor Program (SEVP) is in the process of ending the temporary rule that allows schools to have F-1 and M-1 students take courses exclusively online. This rule was implemented in March 2020 because universities across the nation suddenly had to close campuses and shift to online courses when the COVID-19 pandemic hit the United States. SEVP has announced that this provision will be removed as of the fall semester, but many questions remain.

SEVP Announcement

On July 6, 2020, SEVP issued a broadcast message to all schools certified to enroll F-1 and M-1 students. Simultaneously, the U.S. Immigration and Customs Enforcement (ICE) website issued a news release entitled, “SEVP modifies temporary exemptions for nonimmigrant students taking online courses during fall 2020 semester.” The new guidance amends previous guidance from SEVP related to online courses and maintenance of status. The U.S. Department of Homeland Security (DHS) will formalize this guidance in the near future by issuing a temporary final rule via the Federal Register.

Some In-Class Coursework Required

Starting in the Fall 2020, schools that only offer online coursework will not be able to continue to enroll F-1 or M-1 students in the United States. If the school offers only online instruction, the students will have to transfer to another program of study that does offer some in-class coursework, such as hybrid courses, or else change status or leave the United States.

Per the announcement, students attending exclusively online schools will be able to continue (or start) taking classes from abroad while their SEVIS records remain active. The current FAQs for SEVP Stakeholders about COVID-19 last updated 06.Jul.2020, still indicates that the SEVIS record will remain active as long as the student is making normal progress in their course of study online from abroad at a qualifying school, and “the five-month temporary absence provision … will not apply for students who remain in Active status.”

If a school follows its normal mode of instruction, which is primarily in-person teaching, the F-1 students must follow the standard rule limiting online instruction to one class not exceeding 3 credits per term. Or, if the school is offering any combination of online and in-person instruction, such as hybrid classes, the students can continue to study in the U.S., without breaking their F-1 status as long as their coursework contains at least one course taught either as all an in-person or hybrid instruction.

New I-20s to be Issued

All schools that will enroll F-1 students in the United States in fall 2020 will have to issue new I-20s by August 4th, with a special notation that the student will not take an entirely online course load. Schools that do not offer any in-person instruction will have to submit an operational change plan to SEVP no later than July 15, 2020.

The Broadcast message restricts M-1 vocational students to in-person instruction only, with no online classes allowed.

Broadcast Message Addresses Some Questions, but Leaves Others Unanswered

What happens if a school closes in mid-semester, such as at Thanksgiving, to switch to all online coursework? According to the broadcast message, the school’s F-1 students will fall out of status if they do not transfer to another school with an in-class component or would have to leave immediately.

The Broadcast Message notes that designated school officials (DSOs) should prioritize issuing new I-20s to those students who are outside of the U.S. and require new visas in order to enter the country in time for the fall semester. What if the consulates remain closed for the remainder of the summer? Even if the consulates reopen in the near future, they would have to process all new F-1 visa applications in time for the start of new academic year, which is only a few weeks away. This will inevitably create a bottleneck effect that will keep many students from being able to enter the U.S. by the beginning of the Fall 2020 term. The Broadcast Message does not address this concern.

If a student has to depart or remain outside of the U.S. and take classes from abroad because their school offers online learning only, and they graduate in December 2020, will they be able to apply for OPT? The broadcast message does not deal with this question, either.

As previously noted, the broadcast message indicates that the new I-20 must be issued by August 4, 2020. However, many students will not have their class schedules finalized by this date. Will the student’s intent to enroll in classes with at least some in-person instruction be sufficient for the DSO to issue the required I-20? Again, the broadcast message is silent on this point.

Conclusion

Given that the COVID-19 pandemic has shown no signs of dissipating in the near future, it seems entirely callous that SEVIS would require foreign national students to attend in-person classes, or else depart the United States. Schools may now have to decide between not having any F-1 or M-1 students, or putting people’s lives at risk to go to in-person classes. Similarly, students may have to choose between the possibility of being exposed to a deadly disease or giving up on their dreams of studying in the United States.

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