Article by Alyssa Aquino, Edited by Jack Karp

Law360 (July 6, 2020, 10:22 PM EDT) — International students who planned on taking an online course load for the fall semester will have to choose between taking those virtual classes abroad and switching to in-person classes to remain in the U.S., according to Monday guidance from U.S. Immigration and Customs Enforcement.

ICE’s Student and Exchange Visitor Program, which runs the student visa program, announced that international students will not receive visas or be allowed to enter the U.S. if they’re enrolled in degree programs that have completely moved online.

“Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status,” the agency said. “If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings.”

The guidance comes as American universities ready to move their course offerings online for the fall semester in light of the coronavirus pandemic.

In the same statement, the agency announced it was lifting a rule barring international students from taking more than one virtual class in a semester. The exemption will benefit foreigners enrolled in hybrid model schools — schools offering online and in-person courses. But the hybrid universities must prove that the international student is enrolled in a mix of in-person and virtual classes, the agency said.

If an international student is enrolled in a hybrid school that switches mid-semester to an all-online program, the student “must leave the country or take alternative steps to maintain their nonimmigrant status, such as reduced course load or appropriate medical leave,” ICE instructed.

An ICE spokesperson told Law360 that the measure doesn’t constitute a change in agency policy.

“Per federal regulations, eligible F[-visa] students can take one class or three credit hours online each school term. They cannot take a full course load of online classes. This is not a change,” the spokesperson said.

However, David Ware of Ware Immigration called Monday’s measure a “bizarre backtracking” for an agency that previously loosened student visa rules to accommodate for schools that had moved online when the coronavirus first broke out in the spring.

The guidance puts the onus on American schools and international students to change their plans mere weeks before the fall semester begins, he said.

Institutionally, the guidance may be aimed at strong-arming schools into holding in-person classes for international students. But opening up the classroom could potentially run afoul of local coronavirus ordinances, or leave schools vulnerable to legal liability if a student contracts the virus, he said.

On the other side, foreign students enrolled in a virtual program may attempt to transfer to a hybrid school to remain in the U.S. But those students must find a comparable degree program willing to admit them at their point of studies, Ware explained.

“That’s adding layers and layers of difficulty there,” he said.

Liz Goss of Goss Associates LLC told Law360 that keeping international students will be of paramount concern for schools, which stand to lose that stream of tuition money at a time when overall enrollment has already been hit by the pandemic.

But though U.S. schools will be reevaluating their fall semester plans, Goss doubts they could completely walk back a decision to go online or even try and pull together a solution exclusively catered to international students.

“This is really a train wreck for institutions of higher education trying to get their feet under them for the fall,” Goss said.

Regardless of how the guidance will affect universities, Goss sees the agency as taking aim at international students. “It’s just another way to force students to self-deport,” she said.

Losing the ability to remain in the U.S. while completing virtual coursework will certainly hit international students hard, said Rachel Banks of NAFSA: Association of International Educators.

“It’s still attractive,” she explained. Foreigners don’t want to lose the benefits available to international students who are in the U.S., such as optional practical training.

Foreign students may also be forced to return to time zones vastly out-of-step with their classes, Goss pointed out. “If I’m in Jakarta … how could I possibly do online learning on schedule with the rest of my class?” she asked.

Banks added that the guidance intersects with other roadblocks in foreign students’ way. Particularly, the fact that the U.S. Department of State has indefinitely shuttered nonessential services at its overseas consulates.

Although some international students may have signed up for in-person classes, if they’re outside the U.S., they’ll have to figure out how to enter the country, she said.

“Can you even get a visa if the consulates aren’t processing visa applications?” she asked.

According to Banks, international students collectively inject $41 billion into the U.S. economy, a figure attributable to the money they spend on tuition as well as what they spend living and buying food in their local communities.

But their contribution to the American landscape is more than economic. The university campus provides a space for international and domestic students to interact. Many domestic students wouldn’t otherwise have the opportunity to meaningfully engage with foreigners, Banks explained.

“This is their one opportunity to engage with people from the outside world. If we’re shutting doors, we’re cutting off our noses here,” she said.

Posted in: Immigration