The new temporary final rule, issued Monday afternoon, prohibits international students from returning to or remaining in the United States this fall if the colleges they attend adopt online-only instruction models amid the pandemic.
A growing number of colleges -- including Harvard University -- have announced that they will reopen their campuses in the fall but conduct classes online. Even with campuses open, international students will be prohibited from studying in the United States under the rule.
“It’s just mean-spirited,” said Allen Orr, president-elect of the American Immigration Lawyers Association. He noted the myriad logistical issues it poses for international students.
“You are discontinuing whatever you may have already been in. You might have already had a lease,” he said. “Even if these colleges have school online, some places may be in different hours and different time zones.”
Should colleges’ instruction models change midsemester, returning to the United States could be difficult, Orr said.
“If colleges are able to reopen -- let’s say there’s a vaccine or whatever happens -- those foreign students would be disadvantaged in their ability to come back,” he said. “There are not that many flights back to the United States; there are not that many flights within the United States.”
On the other hand, if colleges conducting in-person instruction this fall move back online midsemester, international students will be required to leave the country or “take alternative steps to maintain their nonimmigrant status such as transfer to a school with in-person instruction,” the rule states.
This is a shift away from the exceptions put in place during the spring and summer terms, which allowed international students residing in the U.S. to take a fully online course load as colleges transitioned to online instruction in response to the coronavirus pandemic. More than 90 percent of international students chose to remain stateside in the spring, according to a survey by the Institute for International Education. Should the pandemic worsen, the new rule would not allow such flexibility for those students.
Sarah Spreitzer, director of government relations at the American Council on Education, said she expects many institutions to try to work around the guidance, and for more colleges to consider hybrid online and in-person instruction models as a result.
The rule makes an exception for students enrolled at colleges using a hybrid model this fall. Those students will be able to remain in or return to the U.S. as long as “the program is not entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.”
“The guidance talks about your specific program,” Spreitzer said. “Schools may have already been going down the path where some programs would be completely online, but this other program over here would have an in-person component. So then they’re going to have to ensure that every program has an in-person component.”
Several higher education organizations, including ACE and the Presidents’ Immigration Alliance, released statements Monday strongly condemning the rule and urging the Trump administration to rework its position.
“Today’s decision by ICE is just the latest reflection of this administration’s xenophobic and misguided response to the Covid-19 pandemic. This decision forces international students to make a cruel decision between either leaving the country abruptly or scrambling to find a new program or institution,” wrote Kyle Southern, policy and advocacy director of higher education and workforce at Young Invincibles. “In the midst of a global pandemic, the administration is pressuring colleges and universities -- particularly those enrolling large numbers of international students -- to bring students back onto campuses while infection rates reach new records.”
Immigration lawyer Greg Siskind on Twitter said the rule was essentially a new travel ban for F-1 students, and noted the move could jeopardize public health.
“If you are worried about COVID and not reopening too soon, you should be VERY worried about this,” Siskind tweeted. “Schools WILL be opening this fall that otherwise would have kept classes online because of ICE's decision. That puts the health of everyone in danger.”
Orr expects colleges to push back hard on the rule.
“There’s absolutely no reason for this underlying rule. What is the issue? They are paying tuition, they are enrolled in the school program, they’re doing the exact same thing their counterpart students are doing.”