DHS To Publish Rule Saying F-1 Students May Not Stay in U.S. if Classes Are Entirely Online, Despite COVID-19

July 6, 2020

Today, the Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security issued a news release about changes to the Student and Exchange Visitor Program (SEVP). DHS will publish a Temporary Final Rule affecting F-1 students enrolled in or about to enroll in U.S. colleges and universities.

The Rule will state that:

• F-1 and M-1 students attending schools who are operating entirely online may not remain in the U.S. if they are taking a full online course load. Students currently in the U.S. must depart the U.S. or take other measures, “such as transferring to a school with in person instruction” to remain in lawful status or they “may face immigration consequences including, but not limited to, the initiation of removal proceedings.”
• F-1 students attending schools with a hybrid model (ie, a mixture of online and in person classes) must get certification from their school that they are not taking all classes online and that they are taking the minimum number of online classes required to make normal progress in their degree program.
• F-1 students attending schools with normal in person classes may take a maximum of one class or three credit hours online.
• If a student begins the fall semester with in person classes but later is required to switch to only online classes, or otherwise ends up taking all classes online, the school must update the Student and Exchange Visitor Information System (SEVIS) within 10 days of the change. “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.”

This Rule will eliminate the temporary exemption for online classes which were provided to foreign students for the spring and summer 2020 semesters due to COVID-19, allowing them to take more online courses than normally allowed under federal regulations for F-1 and M-1 students.

This Rule does not appear to affect F-1s holding post-completion optional practical training (OPT) or STEM OPT status.

Update on 7/8/2020: Harvard University and the Massachusetts Institute of Technology (MIT) have filed a lawsuit in Federal Court in Boston, seeking a temporary restraining order or an injunction of enforcement of this Rule.