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DHS Rescinds Policy Restricting F-1/M-1 Students from Taking Online Courses

On July 14, 2020, the Department of Homeland Security (DHS) agreed to rescind the following modifications to the Student and Exchange Visitor Program (SEVP) exemptions for F-1 and M-1 nonimmigrant students who will take online classes for the Fall 2020 semester due to the COVID-19 outbreak:

  1. F-1 and M-1 students attending schools that will operate entirely online during the Fall 2020 semester may not take a full online course load and remain in the United States in F-1 or M-1 status. Additionally, the U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are entirely online for the Fall 2020 semester, and Customs and Border Protection (CBP) will not admit these students to the United States in F-1 or M-1 nonimmigrant status. F-1 and M-1 students currently in the United States and enrolled in schools and/or programs that will be entirely online for the Fall 2020 semester must transfer to a school offering in-person instruction in order to maintain their F-1 or M-1 nonimmigrant status.
  2. Nonimmigrant F-1 students who are enrolled in schools operating under normal, in-person classes are bound by existing immigration regulations, and can take a maximum of one class or three credit hours online. All other courses must be in-person.
  3. Nonimmigrant F-1 students attending schools that have a hybrid of online and in-person classes will be allowed to take more than one class or three credit hours online. However, these schools must certify to SEVP, through the Form I-20 Certificate of Eligibility for Nonimmigrant Student Status, that the program is not entirely online; the F-1 student is not taking an entirely online course load for the Fall 2020 semester; and the student is taking the minimum number of online classes required to make normal progress in their degree program. Note that these exemptions do not apply to F-1 students in English-language training programs, or M-1 students pursuing vocational degrees, as these students are not permitted to enroll in any online courses.

DHS has agreed to rescind these modifications as part of a settlement with Harvard University and Massachusetts Institute of Technology (MIT). Harvard and MIT filed suit in the U.S. District Court for Massachusetts seeking to bar DHS from enforcing the modifications to the F-1 and M-1 exemptions for online coursework.

DHS and SEVP will revert to their March 13, 2020, temporary guidance, which allows foreign students to remain in the U.S. in valid F-1/M-1 nonimmigrant status while taking online courses during the pandemic as part of their SEVP-approved degree program, regardless of whether their schools and/or programs are fully online, or operating under a hybrid model.

With the modifications rescinded, companies can continue to employ F-1 students with Curricular Practical Training (CPT) employment authorization, even if the F-1 students are enrolled in schools/programs that shift to online classes for the Fall 2020 semester due to the COVID-19 outbreak.

This post was written by Jamie Marr.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 198

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