Federal Government Voluntarily Withdraws New Policy in Court

Today (July 14), at the start of the hearing in Harvard’s lawsuit in Massachusetts federal court, the federal government (the Department of Homeland Security and Immigration and Customs Enforcement) agreed in court to withdraw all restrictions related to F-1 students taking online classes in the fall, restoring the status as of March: students may take online classes with no credit-hour limits, and students outside the United States will not be prevented from applying for F visas and returning to the United States.

Harvard and MIT Decide to Sue the Government

On July 8, Harvard University and the Massachusetts Institute of Technology jointly filed suit in Massachusetts federal district court against the Department of Homeland Security and Immigration and Customs Enforcement. They sought temporary and permanent injunctions prohibiting ICE from enforcing the new policy described in this article. Harvard had previously announced that the fall semester would be 100% online. Here is the link to the complaint.

Today, U.S. Immigration and Customs Enforcement (ICE) issued a press release modifying the previous relaxed policy that allowed students temporary exemptions from certain F-1/M-1 visa conditions. For the 2020 spring and summer semesters, ICE temporarily allowed students taking 100% online classes to remain lawfully in the United States. However, today’s release states that this policy will be significantly changed for the 2020 fall semester.

SEVP New Policy

The following is the content of ICE’s new policy:

  1. If a school’s program for the fall semester is entirely 100% online, students will not be issued new F-1 visas, may not enter the United States, and those already in the United States must depart (or transfer schools).
  2. If it is a traditional in-person program, existing regulations still apply (8 CFR 214.2 (f)), requiring a full course of study. A maximum of 3 online course credits per semester may count toward the requirement.
  3. If it is a hybrid in-person/remote program (language schools do not apply), the school must submit a certification confirming that its program will arrange classes for in-person instruction as much as possible and is not entirely 100% remote. Hybrid programs are not subject to the limit of a maximum of 3 credits per semester counting toward the full-time requirement.

Original text: 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。

What Category Does My School’s Program Fall Under?

For most people, their program is a traditional in-person program under item 2 above. Each school has its own minimum credit requirements; generally, undergraduates need 12 credits and graduate students need 9 credits. Only 3 credits (or one class) of online courses per semester may count toward the minimum credit requirement. Schools may seek to convert their programs to hybrid programs under item 3 in response to this new policy and provide some in-person classes to work around the policy requirements.

What Should I Do?

We recommend waiting for your school’s international student office to respond, or seeking guidance from that office. Under the current circumstances, most students would be unable to meet the full-time study requirement because available in-person courses cannot satisfy the minimum credit requirements.

I’m a PhD Student—Do Research Courses Count?

At many schools, PhD students use Research courses to fulfill the minimum credit requirements. We recommend asking your school whether Research courses count as in-person “courses.”

I Only Have One Semester Left

If you have only one semester left to complete your program, you can apply for a reduced course load. As long as you are not registered for zero in-person courses, you can remain in the United States.

I Want to Return Home but Can’t Buy a Plane Ticket

You can apply online for Form I-539 to change status to a B visa to ensure you maintain lawful status at all times.

Summary

If you are still a student, we strongly recommend confirming with your school which category your program falls under to ensure your F-1 status remains lawful. If you are already out of status in the United States, you cannot apply for a change of status, and obtaining an H-1B after graduation will not automatically convert you to H-1B status. We hope everyone takes this seriously.