ICE continues to block new or “initial” foreign students from entering if their degree programs go online for the fall

We reported on July 16 that the U.S. Immigration and Customs Enforcement had rescinded its directive that barred foreign students from taking 100 percent online courses for the fall semester even if that was all that was offered by their colleges and universities.

Despite ICE’s agreement to rescind, reports began to emerge that new foreign students, outside the United States, were being denied student visas to attend the fall semester if their schools offered only online courses. On July 24, ICE issued updated guidance that memorialized that policy regarding new foreign students.

Specifically, ICE said that a school’s Designated Student Officer

should not issue a Form I-20, ‘Certificate of Eligibility for Nonimmigrant Student Status,’ for a student in new or Initial status who is outside of the United States and plans to take classes at an SEVP-certified educational institution fully online. As a result, new or initial nonimmigrant students who intend to pursue a full course of study that will be conducted completely online will likely not be able to obtain an F-1 or M-1 visa to study in the United States.

The updated guidance distinguishes new or “initial” students from already-enrolled students. A foreign student who was enrolled in a course of study in the United States on March 9, 2020 (and hence was not a new student), but subsequently left the country, can obtain a visa to enter the United States. On the other hand, a foreign student who is “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.”

Now what?

ICE agreed to rescind its online class policy just before a hearing on motions for a temporary restraining order and preliminary injunction in a lawsuit brought by Harvard University and the Massachusetts Institute of Technology. Although ICE’s agreement made the motions moot, the lawsuit is still pending. In addition, a number of other lawsuits have been filed nationwide challenging the ICE policy. We expect the plaintiffs in one or more of these lawsuits to bring ICE’s latest update to the attention of the courts. Whether the courts will allow the policy to continue in its updated form remains to be seen.

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