July 13, 2020 8:50AM

ICE’s Online Class Policy For Foreign Students: Lots of Questions, Few Explanations

Last week, Immigration and Customs Enforcement (ICE) announced a new policy that creates a catch‐​22 for U.S. universities and international students. ICE will terminate the status of any foreign student in the United States enrolled at a U.S. university without any in‐​person classes or, conversely, force foreign students abroad to attend classes in‐​person if any are offered or terminate the validity of their student status at their U.S. universities.

U.S. universities have condemned the policy as endangering their students and the schools’ financial wellbeing. Harvard University and Massachusetts Institute of Technology (MIT) filed a lawsuit to stop implementation of the policy, which a judge will rule on July 15. ICE has still not provided much explanation of the policy or given any specific justifications for it, making it difficult to understand.

What was the pre‐​pandemic policy for online study?

The law requires all international students on F-1 student visas to be enrolled in a “full course of study” at a U.S. school. The regulations require “at least twelve semester or quarter hours of instruction per academic term” for undergraduate foreign students. ICE’s pre‐​pandemic rule for online learning—which dates to December 2002 and has never been rescinded—allows students to fulfill this requirement through at most one (3 credit) online course that “does not require the student’s physical attendance for classes” (8 C.F.R. 214.2(f)(6)(i)(G)). In other words, online classes may not make up more than 1/4 of the total required courses.

What pandemic policy did ICE initially adopt for online study?

On March 13, 2020, ICE announced via a guidance document that “Given the extraordinary nature of the COVID-19 emergency,” it “will allow F-1 and/​or M-1 students to temporarily count online classes towards a full course of study in excess of the limits stated in 8 CFR 214.2(f)(6)(i)(G)”. It stated, “This temporary provision is only in effect for the duration of the emergency”. However, the document contained the warning:

NOTE: Due to the fluid nature of this difficult situation, this guidance may be subject to change. SEVP will continue to monitor the COVID-19 situation and will adjust its guidance as needed.

On June 4, ICE wrote in a FAQ document for schools that ICE “is actively working to issue guidance” for the Fall 2020 semester, despite the existence of the earlier guidance that was not limited to the Spring 2020 semester.

What is ICE’s new policy for online study?

On July 6, ICE released a document stating that it plans to make formal regulations amending the pre‐​pandemic regulation. It stated that the new regulations will state:

  1. “Students attending schools operating entirely online may not take a full online course load and remain in the United States,” but that “Students attending schools adopting a hybrid model—that is, a mixture of online and in person classes—will be allowed to take more than one class or three credit hours online.” The guidance threatens, “Active students currently in the United States enrolled in [online‐​only] programs must depart the country … or potentially face immigration consequences including, but not limited to, the initiation of removal proceedings.”
  2. Schools will need to certify that “the program is not entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.” This requirement requires the universities to issue new I-20 Forms for about a million students within three weeks of July 6—in many cases without the students having signed up for classes yet.
  3. International students with F-1 status who left the United States in March will have to travel back if the college chooses to allow any in‐​person classes. The document states, “Only students enrolled at a school that is only offering online coursework can engage in remote learning from their home country.” In other words, if colleges react to this guidance by adopting a “hybrid model” mixing in‐​person and online classes, they will simultaneously force students abroad to travel here. Yet due to COVID-19 travel restrictions—both by the United States and their home nations—it may be impossible for these students to return. If they need to apply for a new visa, it will definitely be impossible because the State Department has stopped processing nearly all student visas. Under a separate regulation, losing status means that even they eventually can return, they would not be eligible for work authorization.

The guidance also states that it is not itself a “rule”—that is, a final formal determination of ICE’s actions—even while it purports to require schools to submit education plans by July 15. DHS Acting Deputy Assistant Secretary Ken Cuccinelli told CNN that it would finalize it “later this month.”

How many courses must be in‐​person?

ICE has not issued any actual detailed regulations, but its notice only prohibits “entirely online” students. DHS Acting Deputy Assistant Secretary Ken Cuccinelli told CNN that “the direction that has been charted here, that remains to be completely finalized… provides the opportunity to do anything short of 100 percent online classes.” This implies that any attendance in‐​person for any amount of time (1 minute of 1 day in 1 class) would qualify as a “not online” class. It’s unclear how ICE will treat a policy such as that of Georgetown where students can choose to take any class online.

How many international students will the new policy affect?

According to ICE, it had records relating to nearly 1.6 million international students and exchange visitors. The Institute for International Education estimates that there were about 1.1 million undergraduate, graduate, and postgraduate students in the United States for the 2018–19 school year. All of them will have to plan on attending at least some classes this Fall.

How are universities affected?

All schools must decide by July 15 whether they will hold in‐​person classes, despite the fact that final detailed ICE regulations explaining what constitutes “online” or “in‐​person” are still not available. It’s unknown how many universities were planning entirely online schedules. Even if they were not, all U.S. universities may have to make accommodations for international students who had planned on not attending in‐​person in the Fall. Many prominent colleges had stated that they were planning on “most” or nearly all classes being online. Georgetown University said that every in‐​person class would allow students to attend virtually (adding “absent any regulatory restrictions which may apply to a limited number of international students”).

If students drop out of school—either because they are forced to leave or conversely because they are forced to come to the United States—that will impose an extreme cost on universities where foreign students almost always pay full tuition. Losing talented foreign students to other universities abroad will also undermine the long‐​term reputation of U.S. universities, leading fewer foreign students to seek to study here (a trend that existed even before the pandemic under Trump).

How are students affected?

All students will have to leave the country within 60 days of their college’s notification that they will not be taking in‐​person classes in the Fall. Setting aside the health risks, it will require hastily obtaining international flights. In many cases, students with off‐​campus housing will have to break their leases, imposing additional economic hardships. If they are currently employed, they will have to quit their jobs. If students are abroad, and their schools reverse their decisions to go online only or mostly, students will be forced to travel to the United States, which is often impossible due to U.S. travel restrictions, or forfeit their student status.

Can international students transfer to colleges with in‐​person instruction?

A few international students may be able to transfer, and ICE asserts that they can pursue that option, but as Harvard and MIT note in their lawsuit, “just weeks from the start of the fall semester, these students are largely unable to transfer to universities providing on‐​campus instruction.”

Can international students enroll in online classes abroad?

Many foreign students have elected to take online only classes from their home countries, but ICE has not indicated that it will provide any leniency for students where this option may not be viable. The largest number of international students come from China where the internet is heavily censored, and many course materials or courses may not be available. Many countries lack reliable internet access. Even where reliable Internet is available, time differences will often make online courses extremely difficult to take in practice. At 3:30 pm in Massachusetts, it is after 1:00 am in New Delhi, India. Of course, if the students are forced to leave, it will become much more challenging for colleges to bring them back at a later date, especially if they transfer. If students are already abroad, the policy requires them to return home to retain their student status if the school offers any in‐​person instruction, even if the college offers online instruction as well.

Why did ICE take this action?

ICE provides little explanation for its sudden reversal on online learning in its document. It only cites a “need to resume the carefully balanced protections implemented by federal regulations.” ICE doesn’t cite any examples of what it means by “protections.” (For whom? From what?) It also claims that the March 13 decision to waive the regulatory requirements was made “during the height of the Coronavirus Disease (COVID-19) crisis” (which is definitely not true). Despite these statements, DHS Acting Deputy Assistant Secretary Cuccinelli told CNN that the decision would “encourage schools to reopen.” Encouraging school to reopen has been a theme with the administration in recent weeks. This appears to be part of that larger effort.

Why do Harvard and MIT think the policy is illegal?

Harvard and MIT filed a lawsuit that asserts that the government violated the Administrative Procedure Act (APA) in amending its policy. The APA prohibits any policies that are, among other things, “arbitrary, capricious, an abuse of discretion … or otherwise not in accordance with law.” The colleges assert that under relevant court interpretations of the statute, the agency has acted arbitrarily and capriciously because it failed to:

  1. consider an important aspect of the problem” (e.g. health, economic, and legal effects on students and universities and their reliance on the earlier guidance);
  2. cogently explain why it has exercised its discretion in a given manner” (i.e. “it does not provide any reasoning”); and
  3. Issue a formal rule after notice and opportunity for public comment, as required for all actions “to implement, interpret, or prescribe law or policy”.

ICE asserts that it will issue a formal rule that could rectify these defects in the current guidance, according to DHS Acting Deputy Assistant Secretary Cuccinelli told CNN, within a month. But that means that the rule, as well as its notice and public comment, will come after the colleges will have already had to implement it. A judge stated that he will rule on the legality of the guidance by July 15.

Why is ICE in charge of student policy?

ICE is the immigration enforcement agency that is usually tasked with making arrests or issuing fines when people break the legal immigration rules set by other agencies, mainly U.S. Citizenship and Immigration Services (USCIS), so it’s strange that ICE is setting legal immigration policy for students.

The Immigration and Naturalization Service (INS) both made and enforced legal immigration regulations as part of the Department of Justice until 2003. In December 2002, INS finalized the rule that limited online classes. The Homeland Security Act of 2002, which created the Department Homeland Security (DHS), separated the functions into the USCIS and ICE. Section 442 of the law tasked ICE with the responsibility to “collect information relating to nonimmigrant foreign students.” Because INS had implemented this information collection authority jointly with its regulations of student visas just months earlier, DHS granted ICE authority over the entire student visa program, not just the information collection component.