ICE rescinds policy “at courthouse steps”: Foreign students will be allowed to take all-online courses this fall

The U.S. Immigration and Customs Enforcement has agreed to rescind a directive that barred foreign students, even during the COVID-19 pandemic, from taking only the online courses offered by their colleges and universities. ICE issued the directive on July 6 but was challenged in a lawsuit brought by Harvard University and the Massachusetts Institute of Technology. On Tuesday, at the outset of a hearing in federal court in Boston, ICE agreed to the rescission.

As result, ICE will revert to the policy it announced on March 13 as a result of the pandemic. Under the March 13 policy, the Student and Exchange Visitor Program, run by ICE, suspended pre-COVID regulations that limited foreign students to one online class, or three credit hours, per semester. The March 13 policy was adopted as a way to provide flexibility to foreign national students whose educational institutions transitioned to all online classes or remote learning as a result of the pandemic.

The July 6 directive

On July 6, ICE announced that “nonimmigrant F-1 and M-1 students attending schools operating entirely online may not take a full online course load and remain in the United States.” Students whose institutions were offering only online courses during the fall semester of 2020 would have to “depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status. If not, they [might] face immigration consequences including, but not limited to, the initiation of removal proceedings.”

The July 6 directive did allow students to maintain their status if their institutions offered a “hybrid option” -- a mix of online and in-person classes. However, that did not seem to be a realistic solution because many states are expected to prohibit in-person classes during the fall semester due to health and safety concerns related to COVID-19.

The directive had a July 15 deadline for schools to notify ICE whether they would be offering all online classes, in-person instruction, or a combination of the two.

The Harvard-MIT lawsuit

On July 8, Harvard and MIT sued ICE under the Administrative Procedure Act, alleging that the July 6 directive was arbitrary and capricious, and asking the court to block the directive. The schools also alleged that ICE did not take into consideration the ongoing pandemic, the health of students, faculty, university staff, or communities, or the impact on foreign students. On July 10, 180 other colleges and universities joined the litigation along with other organizations and employers, including the U.S. Chamber of Commerce, a coalition of national unions, the Foundation for Individual Rights in Education, the American Council on Education, and Facebook, Twitter, Google, Dropbox, LinkedIn, Microsoft, Paypal, Salesforce, and Spotify.

In addition, 17 states and the District of Columbia filed separate lawsuits to stop the policy from taking effect, and some schools had filed their own lawsuits.

The July 14 hearing in the Harvard case was scheduled to last 90 minutes. Instead, the hearing ended within minutes, with the announcement that ICE had agreed to rescind the July 6 directive.

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