Legal Blog

International students taking online only classes cannot remain in the U.S. – Harvard and MIT sue

The public health crisis resulting from the COVID-19 pandemic has resulted in several universities to move to online-only classes.  Recent directives from the Trump administration require international students whose classes this fall are online to leave the United States.[1]  Several schools and interested parties have already filed suit, including Harvard, MIT, Johns Hopkins[2], California,[3] Washington,[4].  Over 100 lawmakers have also demanded that the guidance be revoked.[5]

The program and the data tracking system that schools use to enroll international students (SEVIS) is administered by the U.S. Immigration and Customs Enforcement (ICE).[6]  More than one million students from 193 countries come each year to study, making education a crucial American export.[7]  This allows them to study at K-12 schools, colleges, universities, seminaries, conservatories, and language training programs.

By regulation, academic students (F-1) are limited to one online class or three credit hours per term as part of their full course load. Vocational students (M-1) may not count online or distance education courses toward a full course of study.  In response to the COVID-19 pandemic, ICE issued temporary exemptions in March.[8] Under these exemptions, international students were permitted to take online-only classes for the spring and summer semesters.  These exemptions were stated to be for the duration of the emergency.  However, recent action ends them before fall.

As a result, students that are in programs which have moved fully online are required to leave the United States or enroll in a school offering in-person instruction.  ICE says that failure to comply may lead to immigration consequences, possibly including removal proceedings.

The scope of the restrictions includes both new and current international students.  Visas will not be issued to students coming to attend online-only programs.  A very small number of students who qualify for t medical leave or a reduced course load are exempted.  The vast majority of impacted students already in the U.S. would have to transfer universities or leave the country.  This would be the case even if their program switches to online only later in the semester.

Students in vocational English language training programs are not allowed to take any online classes.  Universities are required to certify that students are enrolled in the minimum number of online courses permitted, for those enrolled in a hybrid model.  Those holding online only classes are in the minority: 24% are planning for a hybrid model, 9% plan to hold classes fully online and 7% have not yet decided.[9]

Universities are required to act very quickly to revise their operations plans and provide new eligibility certificates to international students.[10]  The situation presents unreasonable hardship for students and universities.[11]  Internet connectivity issues and time zone differences may not allow some students to participate on online courses from their home countries.  There are many online platforms used by universities that not blocked or unavailable in certain countries, such as G Suite in China.[12] Financial hardship, continued COVID-19 travel bans, separation from a U.S. citizen spouse or child are all very real reasons why some may not be able to return home.

Colleges and universities have already experienced financial pressure due to falling enrollment due to the economic recession and the loss of in-person college experience.[13]  There is a high likelihood that students who cannot study this semester will not return to their programs later and drop out.  The travel bans will prevent others from returning.  The choice faced by schools is between losing international students and risking public health.  The action hurts the reputation that the U.S. has built over years as a leader in international education.

According to research conducted by ICE, nearly 80 percent of all international students in the U.S. are from Asia, with China and India accounting for nearly half of them.[14]  Ifat Gazia, a PhD student from Indian-administered Kashmir, said: “If ICE sends me and other Kashmiri students back, we would be left with no remote learning option. I will have to take a leave from my university and sit back home until this order is revoked.”

India imposed one of the longest internet blockades in Kashmir in August last year when the disputed Muslim-majority region was stripped of its special status. The internet blockade was lifted in January this year, but mobile internet, which many people there rely on, has been limited to 2G speeds. Id.  Calling the ICE order “xenophobic” and “anti-immigration”, Gazia said the order will have a detrimental effect on international students in the U.S. “This order is basically pushing students to choose between disease and deportation,” Gazia, from the University of Massachusetts Amherst, said.  Id.

A Chinese student currently studying at the University of California, Los Angeles (UCLA) said attending online classes will be difficult if he goes back to his home country. Many websites, including Google and Facebook, that US universities use to communicate with students, are blocked in China. Id.  To get around the issue, he will have to use a virtual private network (VPN) to access search engines such as Google and other websites. “Using a VPN slows the internet speed, and sometimes the connection breaks down,” he told Al Jazeera wishing not to be named.  Id.

Harvard University had already announced that its classes will be completely online in the fall.

A lawsuit has already been filed by Harvard and MIT challenging ICE’s policy.[15]  Harvard president Larry Bacow stated:

“This guidance undermines the thoughtful approach taken on behalf of students by so many institutions, including Harvard, to plan for continuing academic programs while balancing the health and safety challenges of the global pandemic.”

International students bring more than a $40 billion a year to the economy and support almost half a million jobs.[16]

The lawsuit in federal court in Massachusetts advances three main legal claims:

  1. Plaintiffs allege that the July 6 ICE administrative directive is arbitrary and capricious and thus an abuse of discretion in violation of the Administrative Procedures Act (APA), because the rule was not the product of reasoned decision making, by reason of not taking into account all the negative consequences to this action, especially (a) in failing to consider the significant effects that it will have on universities that have invested heavily in developing plans for the 2020-2021 academic year and (b) in not taking into account the universities’ reasonable reliance on the prior March ICE directive, in which ICE had promised that the exemption against Students on F-1 students having their visas revoked on the basis now directed (basically because the student’s classes are going online) would remain in place “throughout the emergency.”
  2. They also allege a violation of the APA on the theory that the rationale provided by ICE for this change (the supposed, but non-existent) “need to resume the carefully balanced protections implemented by federal regulations,” (even while the pandemic rages on) makes no sense on its face and suggest that the real rationale for the July 6 Directive was to use it “as a cudgel to compel universities to alter their plans for the fall” (i.e., to require Universities to open fully, in person, face to face, even though this is not safe).
  3. They finally allege that the rulemaking procedure that was employed violated the APAs requirement of notice and a comment period, without good cause.

The global health crisis has forced every part of our society to respond with the utmost flexibility.  Immigration should similarly permit reasonable adaptations to changed circumstances in light of the public health emergency.  Exceptions should be made to rules that place unreasonable hardship during the pandemic.

Additional resources:

Al Jazeera New US visa rule leaves Indian, Chinese students in panic
By Heena Kausar

American Prospect Kamala Harris, Pramila Jayapal, 100 lawmakers seek reversal of new ICE rule
By Arun Kumar

Ms. Magazine Immigrant Detention During COVID-19: “Total Disregard for People Inside”
By MARCELA RODRIGUES-SHERLEY

Reuters California Sues Trump Administration Over New Foreign Student Rules

Washington Post California leaders sue Trump administration over rule that international students must take in-person classes
By Susan Svrluga

NBC News 99 members of Congress demand withdrawal of restrictions on international students

[1] https://immigrationimpact.com/2020/07/07/international-students-ice/?emci=2abf4885-f5c2-ea11-9b05-00155d03bda0&emdi=ec5010fc-47c4-ea11-9b05-00155d03bda0&ceid=4523908#.XwsZqJhJFPZ

[2] https://hub.jhu.edu/2020/07/10/johns-hopkins-ice-lawsuit-international-students/#:~:text=Johns%20Hopkins%20University%20filed%20a,thousands%20more%20across%20the%20country.

[3] http://r20.rs6.net/tn.jsp?f=001CeoICLLtVNwNfcd7aqJIb88-Yh8bTZArO1R_IVk2kN-kaREGDC6iiZhJVUv2hbFTcODMSHA94bcR1AeM27ReGUiJTrYiEr4hv_Mr_XdpWCReMZ9K78SOltoeXCnB2eoaM7GtWJJds21JhxwLUsY89C28zItU60Hn5GoKCoVCSCrqTuQraAEJhlBMLstHwRCJPH6Q7ZuM5lyERBFTy8mm2Zcx9FuXHPFnuS64DyHDIKHwxsOrJfRsIAzcep2Ztiz35nt39jmlwPM4w82Rf2RPUA==&c=f7yzNVqpBlu-M6PX1g4nxtnekekQtmnD5_lIeNaSz5y4VDw_MsD1qA==&ch=zwQ786xrraKjC87ejTUJojaPiwdsh6XsRfch4u3scvjsWFXnokK2Qg==

[4] https://www.nbcrightnow.com/coronavirus/ag-ferguson-lawsuit-ice-s-international-student-rule-violates-the-law/article_a23ff1e8-c2e9-11ea-9005-eb4accc0122a.html

[5] https://www.americanbazaaronline.com/2020/07/10/kamala-harris-pramila-jayapal-100-lawmakers-seek-reversal-of-new-ice-rule-441731/

[6] https://www.ice.gov/sevis

[7] https://immigrationforum.org/article/fact-sheet-international-students/

[8] https://www.nafsa.org/regulatory-information/sevp-march-13-2020-covid-19-follow-guidance

[9] https://www.chronicle.com/article/Here-s-a-List-of-Colleges-/248626

[10] https://www.ice.gov/doclib/sevis/pdf/bcm2007-01.pdf

[11] https://twitter.com/ReichlinMelnick/status/1280207487573069827

[12] https://www.theguardian.com/news/2018/jun/29/the-great-firewall-of-china-xi-jinpings-internet-shutdown

[13] https://www.nytimes.com/2020/05/01/us/coronavirus-college-enrollment.html

[14] https://www.aljazeera.com/news/2020/07/visa-rule-leaves-indian-chinese-students-panic-200709091726735.html

[15] https://www.thecrimson.com/article/2020/7/8/harvard-mit-sue-immigration-authorities/

[16] https://www.nafsa.org/about/about-nafsa/new-nafsa-data-despite-stagnant-enrollment

ABOUT MOHAMMAD ALI SYED

Headshot of Mohammad Ali Syed, principal attorney with the Employmeny Law Group Practice in Bethesda, MDmo.syed@offitkurman.com | 240.507.1784

Over the past twenty years Mohammad (Mo) Ali Syed has developed a thriving immigration, litigation and international business practice.  In Immigration Law, for individuals, his experience includes family-based immigration, sponsorship, fiancé visas, asylum, naturalization, and U.S. citizenship. He has obtained EB1 expedited green cards for aliens of extraordinary ability in the sciences, arts, education, business, and athletics. For businesses, Mr. Syed has vast experience with nonimmigrant and immigrant visas including H-1B, PERM (employment-based green cards), E1/E2 treaty traders and investor visas, L1 intracompany transfer visas, O, P, foreign professionals, and multinational managers and EB5 investor green cards.

 

 

 

 

 

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