On July 24, 2020 the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), Student Exchange Visitor Program (SEVP) reissued fall guidance for visa-sponsored international students in a Broadcast Message for Fall Term and Clarifying Questions. Following swift litigation in federal district court in Boston, the updated SEVP guidance granted modified relief from the prior July 6, 2020 SEVP guidance that restricted all visa-sponsored international students, whether in the U.S. or abroad, from participating in “fully online” remote learning for fall term. Specifically, the July 24 guidance creates a distinction between new and continuing visa-sponsored international students for fall 2020: 

  • Continuing students may obtain a visa, enter the U.S. and enroll in a “fully online” program for the fall semester, per March 2020 SEVP Broadcast Message and subsequent guidance which enabled schools and students to engage in distance learning in excess of regulatory limits for online participation due to COVID. Notably, “[t]he March 2020 guidance applies to nonimmigrant [e.g. visa-sponsored F-1 and F-2] students who were actively enrolled at a U.S. school on March 9, 2020 and [are] otherwise complying with the terms of their nonimmigrant status.”
  • New students are prohibited from engaging in “fully online” studies. Instead, new students may obtain a visa, enter the U.S. and enroll in a hybrid program of study, defined as “a program of study that includes in-person and online components.” A hybrid model extends beyond the campus institutional modality and must pertain to the student’s individual program of study as incorporating an “in-person component” in the fall term in order to maintain nonimmigrant status.

International transfer students are not specifically addressed in the July 24 SEVP guidance and agency clarity is not expected. Following numerous conversations with higher education counterparts in the region and nationwide, OGC-Immigration Program is advising university stakeholders to treat an international transfer student as a continuing student as long as they were enrolled in another U.S. school on March 9, 2020 and have been otherwise complying with the terms of their nonimmigrant status, e.g. has “transfer status pending” in SEVIS with a UMass campus. Note: transfer students in regular and STEM Optional Practical Training (OPT) should not be treated as continuing students since they were not “actively enrolled in a U.S. school on March 9, 2020; rather, they should be treated as a new student under the SEVP July 24 fall guidance.

All continuing international students may maintain nonimmigrant status and remain in the U.S. if their campus later transitions, mid-term, from hybrid instruction to fully online. It remains unclear from agency guidance whether this also applies to new international students who are, under the July 24 SEVP guidance, prohibited from participating in fully online in the fall. Additionally, all 5 UMass SEVP certified campuses must submit a fall operational program update to DHS/ICE notifying the agency of the change from fully-online in the spring and summer term to hybrid delivery in the fall. 2 UMass impact: The 4 campuses with a hybrid institutional fall plan must provide at least one “in-person component” for new F-1 students enrolling in the fall in order for the new student to obtain a visa, enter the U.S., and maintain legal status for the duration of the academic term. Continuing students, including certain transfers, may participate in entirely online classes. International Student and Scholar Offices across the system have been actively communicating SEVP changes to the new and continuing F-1 student population as well as providing them with appropriate support letters for travel, if the international student attempts to return to campus. Consulates are slowly re-opening for F-1 visa processing though global mobility and entry into the U.S. remains challenging nationwide. Additionally, Governor Baker’s Order Instituting a Mandatory 14-Day Quarantine Requirement for Travelers Arriving in Massachusetts took effect August 1, 2020. Lastly, deep appreciation and gratitude to the numerous contributors system-wide who were remarkably responsive to large data requests and short timelines in order to successfully challenge the July 6 SEVP guidance in federal district court.

OGC is available to discuss the issues addressed in this Legal Alert with campus officials. If you would like OGC assistance, please contact us using the web-link found at: https://www.umassp.edu/generalcounsel/legal-advice-request and use the words “Legal Alert-Follow Up: Immigration” in the subject line.