The administration intends to prevent international students from retaining their legal status if their studies are online, even if required under their college or university’s COVID-19 response.
U.S. colleges and universities had to react quickly as the COVID-19 pandemic intensified this spring and pivoted to online learning. At that time, the administration announced adjustments so that foreign students could take all of their courses online for the remainder of the spring, and the summer, terms.
Ordinarily, to remain in valid student visa status, foreign students must take at least 12 credits per term, only three of which can be for online course work.
On July 6, 2020, the administration announced that beginning with the fall 2020 term, foreign students on F-1 or M-1 visas will be out of status if they are taking all their courses online – even if their college or university is not allowing students to return for in-person classes. If the institution certifies that it is offering a hybrid model of in-person and online classes, the student will remain in status only if taking no more than the minimum number of online credits required for the degree. In addition, if a student’s college or university resumes in-person courses this fall, but during the term, switches to entirely online courses in response to a surge in COVID-19 cases, the foreign student will fall out of status.
A student who is out of status must leave the U.S. (even if there are not any available flights back to her/his home country), or prejudice her/his ability to return as a student or with any other visa in the future.
The administration’s position not only creates untenable uncertainty for foreign students, but also for U.S. colleges and universities where they are enrolled. Moreover, as this statement from the American Council on Education highlights, they have tremendous economic impact –
Some one million international students attend U.S. colleges and universities annually, contributing greatly to this country’s intellectual and cultural vibrancy. They also yield an estimated economic impact of $41 billion and support more than 450,000 U.S. jobs.
The administration’s policy will have an impact in Maine, not just nationally, as a sampling of Maine’s higher education institutions makes clear. While the University of Maine system plans to resume in-person classes this fall, nearly a quarter of its classes will be delivered online. At Bowdoin, the majority of its upperclass students will take only online classes. Under the administration’s policy, foreign students at Bowdoin would fall out of status under this model, and under this rule would be expected to leave the U.S. or transfer to another college where they can attend in-person classes, rather than complete their studies at Bowdoin- even if this is their senior year. Both Colby and Bates intend to have students return to campus, but many courses may be taught online. As Bates has noted,
These new directives from ICE undercut our ability to educate students fully, cause unnecessary fear and anxiety, and run contrary to our national interest in positioning the U.S. as the higher education destination for talented and ambitious students from across the globe. Further, they directly undermine Bates’ ability to fully live up to our commitment to access, equity, and inclusion.
Harvard and MIT filed suit on July 8, 2020 requesting an injunction to block implementation of the administration’s rule. Another 59 colleges and universities filed an amicus brief supporting their stance, as did 180 more institutions who joined a separate amicus brief. The state of California also sued the administration on July 9th, with another 17 states filing suit on July 13th. A ruling on Harvard and MIT’s lawsuit on whether or not to block the administration’s action is expected on July 15th.
If their lawsuits don’t succeed, the economic fallout and loss of access to international student talent could well be to the nation’s long term detriment.
The administration’s action continues its pattern of using the coronavirus pandemic to rapidly advance an agenda dramatically constricting legal immigration, including banning entry of new permanent residents, temporary foreign workers, refugees, and asylum seekers. The administration has been hostile to immigration since its outset in 2017, but ordinarily only Congress can change the nation’s immigration laws. With the pandemic, the administration has ramped up its practice of using executive actions and rulemaking to bypass Congress, to transform the U.S. immigration landscape and close the nation’s doors.