In a hearing before the U.S. District Court in Massachusetts on Tuesday, July 14, the Department of Homeland Security (DHS) agreed to rescind the guidance issued by the Student and Exchange Visitor Program (SEVP) on July 6, 2020, which would have banned nonimmigrant F-1 and M-1 students attending schools operating entirely online from remaining in the U.S. while taking a full online course load. DHS rescinded the Fall 2020 guidance in response to a lawsuit from Harvard University & the Massachusetts Institute of Technology (MIT), and widespread backlash, and reverted back to the guidance issued in March. For Fall 2020, international students in the United States will be allowed to take more than one virtual class and still maintain active student status.
The parties’ agreement rescinds any implementation of the July policy directive or FAQ, returns all parties to the status quo reflected by the March 9 and March 13 policy directives issued by SEVP, and precludes enforcement of SEVP’s July policy on a nationwide basis. These procedural adaptations gave institutions of higher education flexibility to teach entirely online for student and faculty safety while international students maintained their active status within the United States.
The lawsuit is President & Fellows of Harvard College, et al. v. US Department of Homeland Security, CA 20-11283-ADB (D. Mass.). Six other lawsuits have been filed by various States and institutions of higher education.
The previous guidance, issued in March, permits the following procedural adaptations:
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. 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 typical regulatory limits. This is true even for students who have left the United States and are taking the online classes from elsewhere.
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.
If a school determines that it will exercise temporary closure or make other significant operational or curricular changes, the school must advise SEVP of accommodations it is making for its F and M nonimmigrant population within 10 business days of the date of the decision to initiate the operational change.
Questions still remain:
The March guidance stated that it applied to students who are currently enrolled in a program of study (Active SEVIS status) and was not intended for new or initial students who are outside the United States. New, initial students were directed to remain outside the United States. It remains unclear whether such students would now be permitted to enter the U.S. to begin a fully-online, or even partially-online course of study.
Neither SEVP nor USCIS provided guidance as to whether Active students who were outside the United States and concluding their programs could apply for Optional Practical Training employment authorization.
It can be expected that the government will take formal actions to rescind the July directives and FAQ, and to making any conforming revisions to its March 2020 guidance.