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Students on F-1, M-1 May Be Removed, ICE Announces

U.S. Immigration and Customs Enforcement (ICE) has announced that students in F-1 or M-1 nonimmigrant status will not be able to remain in or enter the United States if they are taking only online courses during the upcoming fall semester. This is a last-minute change from the flexibility that students were given this past spring and through the summer when COVID-19 forced most universities online.

The new restriction not only causes problems for foreign students, but it also is likely to increase the economic pressures colleges and universities are facing due to COVID-19 by inducing foreign students to attend universities elsewhere. This is on top of the already confounding travel restrictions that affect foreign students, such as the Schengen, UK, Ireland, Brazil, China, and Iran COVID-19 bans, as well as the various pre-COVID-19 travel bans and restrictions that affect a smaller number of students.

According to ICE:

  • F-1 and M-1 students cannot remain in the United States and visas will not be issued to them if their school is operating entirely online. Those already in the U.S. must depart or take other measures, such as transferring to a school with in-person instruction, or be subject to immigration consequences up to and including removal.

  • F-1 students who are attending schools that are operating “normally” (in-person instruction) are subject to the existing regulations, i.e., eligible to take only one course (three credit hours) online per semester.

  • F-1 students whose schools are adopting the hybrid model for instruction will be allowed to take more than one course online, but the schools will be required to make specific certifications regarding their teaching model and course loads. The hybrid model exemption is not available to students in English language training programs or M-1 students pursuing vocational studies.

If there is a change in circumstances during the semester, such as a return to fully online instruction due to COVID-19 spike, foreign students will need to leave the country (if they can), switch to a different program (which may not be possible), or take alternative steps such as a reduced course load (which is allowed only in limited circumstances).

Colleges and universities are struggling in an uncertain environment to develop plans to balance educational goals with COVID-19 safety measures. Despite the financial problems involved for the institutions, most are changing their calendars, limiting the number of students on campus at any one time, providing hybrid teaching models, and even putting all classes online while still bringing students to campus. Indeed, some have already announced they will be teaching fully online for the fall semester. The fully online approach allows the schools to accommodate not only students who are at risk, but also faculty, many of whom are in high risk categories. ICE’s announcement may force schools to rethink their already carefully balanced plans and adopt the hybrid model. Foreign students will be forced to take some in-person classes – despite the health risk – in order to come to or remain in the United States with their classmates.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 189

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About this Author

Peter Reca, Jackson Lewis Law Firm, White Plains, Labor and Employment Law Attorney
Associate

Peter A. Reca is an Associate in the White Plains, New York, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

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