U.S. Department of Homeland Security Issues New Guidance for International Students Attending U.S. Colleges and Universities

On July 6, 2020, new guidance was issued related to the Student and Exchange Visitor Program (SEVP) by the U.S. Department of Homeland Security (DHS), affecting hundreds of thousands of international students attending United States colleges and universities this fall. The DHS indicates in the “Broadcast Message” that this guidance (a July 24th updated guidance can be found here) will be published in the near future as a Temporary Final Rule in the Federal Register. Frequently asked questions related to this guidance can be found here.

The guidance makes clear that international students will no longer be allowed to return to, or remain in, the United States if the student’s college adopts an online-only model for fall 2020. This is a reversal of exceptions to visa requirements adopted by the DHS at the onset of the COVID-19 pandemic in March 2020. The guidance continues the requirement that international students must participate in “in-person” classes and continue to be subject to a maximum number of online credit hours.

The guidance is concerning, at the very least, because in the event a college determines it needs (or is ordered) to migrate from in-person classes to a fully online platform in fall 2020, international students will be faced with limited choices, such as:

  1. Transferring to a school with in-person instruction;
  2. Taking alternative steps to maintain their nonimmigrant status; or
  3. Leaving the United States.

The DHS guidance does not provide how a student matriculating at a university will be able to transfer, possibly mid- or late-semester, to another institution providing in-person instruction.

The guidance also requires reissuance of new Forms I-20 for each student with newly required information, as well as certifications as to how the institution intends to operate its classes during fall 2020 – online-only, normal in-person classes, or a hybrid of in-person and online classes. Deadlines for these newest filings range from July 15, 2020 (for online-only fall 2020 institutions) through August 4, 2020 (issuance of new Forms I-20).

As of July 8, 2020, Harvard University and Massachusetts Institute of Technology filed a lawsuit against the DHS and others, requesting that a federal court issue a temporary restraining order prohibiting enforcement of this policy and the subsequent Final Rule. We will continue to monitor this lawsuit and implementation of the DHS’s newest policy.

Additional Assistance

For further assistance, please contact a member of the Education Practice Team, the Coronavirus (COVID-19) Response Team, or the Phillips Lytle attorney with whom you have a relationship.