July 10, 2020

The Administration’s Latest Blow to International Students and How Universities Can Respond

Seth Grossman Chief of Staff and Counselor to the President of American University; Washington, DC ACS Lawyer Chapter Leader

Amid the ongoing health and safety challenges posed by COVID-19, colleges and universities across the country have been planning for the fall semester on the assumption that, whether they offered classes entirely online or through a hybrid approach with both online and in-person classes, their international students would be able to continue their studies while living in the United States.

This assumption seemed reasonable under guidance that Immigration and Customs Enforcement (ICE) had issued in March suspending its typical restriction for international students studying on an F-1 visa – the primary visa for international students studying full-time at universities in the United States – of only a single course (or its equivalent) online in a term. ICE’s guidance at the time stated this revised policy would be “in effect for the duration of the emergency,” so universities fully expected it would continue to apply in the fall given the current course of the pandemic.

All that changed on July 6, when ICE reversed its spring guidance through a news release, a somewhat more detailed message to schools, and a Frequently Asked Questions (FAQs) document. This new policy, issued without any advance notice or opportunity for affected parties to comment, prohibits international students from remaining in the United States if their university will offer courses exclusively online for the fall semester. International students may remain in the United States, or enter the United States, only if they are taking a portion of their course load for the fall semester in person and their school certifies they are taking no more online classes than necessary to make normal progress in their program. In the announcement, ICE indicated it would issue a temporary final rule codifying this new policy, although it gave no timetable for doing so beyond the “near future”.

Making a bad situation even worse, the ICE directive provides schools little time to comply with its various requirements. Universities which plan to offer their instruction entirely online must notify ICE by July 15, less than 10 days after the new directive was announced. While universities that plan to offer hybrid instruction have until August 4 to notify ICE, they must submit a new compliance form for each international student by that date. As an official at Indiana University explained, reissuing the new forms to all international students is “not trivial … [i]t’s an all-hands-on-deck exercise.” It also may be impossible for some schools, as the deadline for students to register for fall classes is after August 4th at several universities.

Under ICE’s new policy, international students in programs that are entirely online for the fall face several difficult options. They can, as ICE suggests, try to transfer to a university offering some in-person education – though that will be difficult to do so close to the beginning of the semester. Or they can depart the United States and try to continue their studies online while living abroad.

This is easier said than done, as leaving the United States presents serious financial, health, and educational challenges for many international students. Last-minute international travel is often expensive, and many countries are maintaining travel restrictions that will make it difficult or impossible for international students arriving from the United States to enter. These students may also face significant expenses for breaking leases or other commitments they made when they planned to study in the United States during the coming year. Travel during the pandemic itself also presents well-known health risks. And once in another country, students may have limited access to the internet or may have to navigate the challenges posed by living in a much different time zone from where their classes are being offered. Yet if international students are in an all-online program and do not leave the United States, ICE has made clear they will face deportation and potentially other immigration consequences.

It is not only universities that plan to offer instruction exclusively online that are affected by ICE’s abrupt reversal. Even at schools offering a hybrid of in-person and online classes, some students still will not be able to enroll in the limited number of in-person courses that will be offered. Any international students in this position will be out of compliance with the new ICE guidance, as it includes essentially no flexibility on the requirement to take at least one class face-to-face to maintain their visa status. Moreover, the ICE directive states that if schools offering hybrid programs shift to all online instruction mid-semester due to health and safety concerns, the international students will still be subject to the same restrictions as those at schools that offered all online programs from the outset of the semester – they will need to transfer to a school that offers in-person classes or depart the United States.

From virtually every perspective – health, educational, and financial – this new approach makes little sense, particularly given that COVID-19 cases continue to increase in many parts of the country. The true motivation for the policy may actually be an effort to force universities to abandon plans for online only instruction in the fall or to exploit the COVID-19 crisis to achieve the current administration’s objectives to reduce legal immigration.

Perhaps unsurprisingly, university leaders widely denounced the policy, emphasizing the central role that international students play as part of their communities and vowing to do whatever they could to reverse the policy or limit its effects.

So, what can universities do to support their international students in light of this new policy?  They have three main paths:

Adjust their plans for the fall to create targeted in-person opportunities for international students. For schools that are planning to offer instruction entirely online in the fall, it is likely they will need to provide targeted opportunities for international students to take some of their courses in person. ICE has failed to make clear how much in-person instruction is necessary for international students to maintain their status, but many believe that a single in-person class, or even a single hybrid class, will be enough. Several schools have indicated they will create new in-person courses or adapt existing courses to provide a face-to-face component for international students. Others have announced their faculty will provide one-on-one independent study for international students as needed for them to maintain their status. Some faculty members have taken to social media to let international students know they are willing to offer them independent study, although others have cautioned against offering that as an option until there is clear guidance from ICE on whether independent study will count as sufficient in-person education under the new directive. Students at some schools started a spreadsheet to help non-international students swap slots in face-to-face classes with their international classmates.

For schools that are planning to offer hybrid instruction, they will need to work with international students individually to make sure they have a qualifying in-person course. One way to do this at schools where students have not completed registration for fall classes is to offer international students priority registration for spaces in in-person courses. This and other support for international students will be critical, and it is already underway: Some universities in this group have informed their international students they will reach out directly to them to develop a plan, and others have offered them one-on-one immigration advising to help them navigate the new policy.

Engage in advocacy to encourage ICE to reverse this policy. The best course of action – in terms of minimizing the economic, health, and educational costs that will result from ICE’s directive – would simply be for ICE to reverse this policy. At the same time that universities are working to support their international students, they can also press ICE to change course. Some universities have said they are starting this advocacy directly and through higher education associations. As part of this work, universities can also enlist allies to advocate for reversing the policy to expand the voices raising concerns about the negative impact of the new directive not just on universities but on a diverse array of communities and the economy more broadly. Some allies have already stepped up. The U.S. Chamber of Commerce, for instance, has already declared that it will consider pursuing legislative (and legal options) if the administration does not reverse the policy.

Pursue litigation to halt the policy. Harvard and MIT, which had announced plans to offer most of their instruction online for the fall semester, filed the first lawsuit challenging the new ICE policy only a few short days after it was issued. Their lawsuit claims that “increasing the number of in-person sessions beyond those currently planned would increase the risk to faculty, staff, and students of contracting COVID-19.”  It asserts that ICE’s action violates the rules of the Administrative Procedure Act – a claim that has proven successful in challenging other immigration policies of the current administration, including the effort to rescind the Deferred Action for Childhood Arrivals (DACA) program. This lawsuit seeks a temporary restraining order to prevent the enforcement of the policy while the litigation is ongoing. Other universities are supporting this challenge. Additional lawsuits are expected in the coming days. However, even if just one of these lawsuits succeed in halting the policy in lower courts, it is a good bet that the administration will seek an emergency stay by the Supreme Court of any injunction.

Universities, students, and their allies may yet succeed in mitigating or invalidating this policy through one or all of these paths. But it is difficult to overstate the impact of ICE’s new directive on international students, on universities and their communities, and on businesses and the economy if it remains in effect— yet another cruel attempt by the current administration to target immigrants and close off America from the world.

Admissions and visa policy, Immigration, Regulation and the Administrative State