Washington, D.C., July 24, 2020: U.S. Immigration and Customs Enforcement (“ICE”) backtracked on its rules for international students studying at US educational institutions that will be 100% online in the Fall of 2020.

The Drama

This saga started in recent months, when ICE announced on March 9, 2020, that it would allow schools, colleges and universities with foreign students to offer flexibility to ensure “that nonimmigrant students are able to continue to make normal progress in a full course of study as required by federal regulations.” The practical effect of that guidance was to allow students enrolled and currently on valid F-1 and M-1 student visa status to remain in the U.S., even if their university was offering courses 100% online in the Fall of 2020.

Then, on July 6, 2020, without notice, ICE issued the dramatic announcement that all international students holding or seeking F-1 or M-1 student status for the Fall 2020 would not be issued a visa, and would not be allowed admission to the U.S. to continue their studies in the US, if their school, college or university was only offering online courses. The guidance relied on the traditional rule that F-1 and M-1 visas are not authorized for programs of study that 100% online.

At that time, ICE offered the following solutions: (1) enroll in a program of studies that offers some in-person classes, even if that means changing schools or universities; (2) leave the U.S. and study from your home country.

The Pushback

Lawsuits followed, led by Harvard University and the Massachusetts Institute of Technology, and several state Attorneys General, seeking to stop the new guidance from taking effect.

During the litigation ICE and the plaintiffs settled by ICE agreeing to withdraw the rule on July 14, 2020.

The Chaos

And – practically without notice — ICE then reversed course on July 24, 2020, by issuing guidance that again prevents F-1 and M-1 students from studying in the US. The new guidance is the following:

1. New international students enrolled after March 9, 2020, whose colleges and universities are operating entirely online this Fall 2020, will not be allowed to enter the U.S. or remain in the U.S. in lawful F-1 or M-1 student status: “Nonimmigrant students in new or initial status after March 9 will not be able to enter the U.S. to enroll in a U.S. school as a nonimmigrant student for the fall term to pursue a full course of study that is 100 percent online.”

2. F-1 and M-1 students who were actively enrolled at American schools or universities on or before March 9, 2020, will be allowed to continue their studies, re-enter the U.S. and remain physically present in the U.S. – even if their program of studies is 100% online in the Fall of 2020.

3. Schools, colleges and universities are not allowed to issue a Form I-20 to an international student in new or initial status who is outside of the U.S. and plans to take classes 100% online. (Nonimmigrant students need a Form I-20, or certificate of eligibility, to apply for a student visa, apply for benefits and enter the country.)

4. New international students who are enrolling for the firs time in a program of study that offers one or more in-person classes are eligible for F-1 or M-1 student visas.

Under the new guidance, ICE recommends that new international students enrolled in programs that 100% online in the Fall of 2020 will have to study from their home countries; change programs/universities to a program of studies that is at least partly in-person, or defer a year of studies.

Donoso & Partners, a leading immigration law firm based in Washington, D.C., will continue to report on developments regarding the immigration law and policy through our news section of donosolaw.com.