Ban on foreign students studying online only challenged

The Trump administration has announced the reintroduction of a ban on international students remaining in the United States while taking an online only course, sparking a furious response from universities and a legal challenge.

As a result of the ban, the US Department of State will not issue visas to students enrolled in schools and-or programmes that are fully online for the fall semester, nor will US Customs and Border Protection permit these students to enter the United States.

Under the new directive from the US Immigration and Customs Enforcement or ICE, a department within the US Department of Homeland Security, active students on non-immigrant F-1 and M-1 visas enrolled in such programmes and currently in the United States must leave the country or take other measures, such as transferring to a school with in-person instruction, to remain in lawful status.

If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings.

The American Council on Education or ACE described the guidance as “horrifying”, saying it “does more harm than good”, and urged the Trump administration to “rethink its position”.

ACE President Ted Mitchell said: “At a time when institutions are doing everything they can to help reopen our country, we need flexibility, not a big step in the wrong direction.”

On 8 July Harvard University and Massachusetts Institute of Technology (MIT) took legal action in the District Court of Massachusetts to have the ban set aside on the grounds of the decision being “arbitrary and capricious”, because it “fails to take into account important aspects of the problem”. They argue that the ruling is an attempt to “force universities to reopen in-person classes”. Other universities are expected also to take legal action.

The ICE ruling, posted online on 7 July, directs that international students attending colleges and universities operating normal in-person classes may take a maximum of one class or three credit hours online.

Students attending an institution operating a hybrid model of in-person and online classes will be allowed to take more than one class or three credit hours online. But their schools must certify to the Student and Exchange Visitor Program that the programme is not entirely online, that the student is not taking an entirely online course load this semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree programme.

If an international student’s college changes to online only courses mid-semester, they will fall foul of the rule, even if the switch is made for public health reasons to protect students from a second wave of the virus.

“Non-immigrant students within the United States are not permitted to take a full course of study through online classes. If students find themselves in this situation, they must leave the country or take alternative steps to maintain their non-immigrant status such as a reduced course load or appropriate medical leave,” ICE says.

Removal of exemptions

The rule change represents a removal of the temporary exemptions for international students taking online classes that were announced on 13 March and applied to courses held in the spring and summer semesters in 2020. This policy permitted non-immigrant students to take more online courses than normally permitted by federal regulation to maintain their non-immigrant status during the COVID-19 emergency.

International students in English language training programmes and those pursuing vocational degrees are not permitted to enrol in any online programmes, the ruling says.

ACE’s Ted Mitchell said colleges and universities have announced and continue to announce multi-faceted, nuanced models for reopening campuses this fall. Some are proceeding with online learning only, others intend to be primarily in-person, and many others have a range of plans for hybrid models.

“ICE should allow any international student with a valid visa to continue their education regardless of whether a student is receiving his or her education online, in person, or through a combination of both, whether in the United States or in their home country, during this unprecedented global health crisis,” Mitchell said.

He said iron-clad federal rules are not the answer at this time of great uncertainty.

“Imagine a student who starts in-person classes at a college that physically reopens. If the college decides it must shift to remote instruction midway through the fall, this guidance could force the institution to tell that student to leave the United States and face an impossible return to another country that has closed its borders.”

Legal challenge

In their legal challenge Harvard and MIT as plaintiffs point out that the Trump administration declared a national emergency on 13 March in an attempt to slow transmission of the deadly virus and, on the same day, when ICE issued its exemption to the rule that international students must attend most classes in person, the government made it clear that this exemption was “in effect for the duration of the emergency”.

They say that since then they and several other higher education institutions have decided to offer education to their students remotely and concluded, given that the pandemic “continues to rage, with record numbers of infections in the US every day”, that to protect the health and lives of their students, faculty, staff and communities, they should offer most of their fall 2020 semester curricula online.

To date, there have been more than three million confirmed cases of COVID-19 in the US, which have caused more than 131,000 deaths, and the most severe projection from the Centers for Disease Prevention and Control is that more than 200 million people in the US could be infected with the novel coronavirus over the course of the pandemic, with as many as 1.5 million deaths.

The new ICE directive threw “virtually all higher education in the US into chaos”, and reveals “no consideration of its action’s impact on the health of students, faculty, staff or the surrounding communities”, the plaintiffs say, and “does not account for the reality that the COVID-19 pandemic continues to this day, and that record daily numbers of infections are being reported in the United States”.

They argue that the ruling reflected an “effort by the federal government to force universities to reopen in-person classes, which would require housing students in densely packed residential halls, notwithstanding the universities’ judgment that it is neither safe nor educationally advisable to do so, and to force such a reopening when neither the students nor the universities have sufficient time to react to or address the additional risks to the health and safety of their communities.

“The effect – and perhaps even the goal – is to create as much chaos for universities and international students as possible.”

The US had 1.1 million international students in the academic year 2018-19, according to figures from the Institute of International Education and the US Department of State’s Bureau of Educational and Cultural Affairs.

According to ACE, they also yield an estimated economic impact of US$41 billion and support more than 450,000 US jobs.

International students are ‘anxious’

Meanwhile, universities are struggling to respond to concerns among international students about the implications of the ruling for them.

Carol Christ, Chancellor of the University of California, Berkeley, told University World News on Wednesday that Berkeley’s international students “are very anxious right now because the new rules just issued by ICE yesterday seemed to make it difficult for them to get visas and therefore continue with their education in the United States.

“The [ICE] rules are very confusingly written. It’s been total panic. I’ve been getting lots of emails from students, which of course I’m answering. But we sent a message to the campus yesterday afternoon trying to reassure them.”

Christ said the University of California – where 12% of the 30,000 undergraduate students are from abroad – is also looking to take legal action against the ruling.

“Of course, it would be a different [court] circuit, the University of California would be the ninth circuit.”

“We are also lobbying Congress. I think everyone was taken by surprise by these regulations. And they are bad for universities whether you’re in a red state or a blue state,” Christ said.

“And the third thing we are doing is to make sure that international students can have the in-person units that they need to stay in the country.”

She said Berkeley, like many universities, is on a hybrid mode in the fall, in which students will take some of their courses online and some of them face-to-face, and “we are just making sure that our international students do have the face-to-face courses that will enable them to comply with the regulations”.

“Most of our courses are going to be delivered remotely [in the fall]; other classes are small classes of under 25 students so laboratory and performing arts classes will be delivered in person. And we are just making sure that we have enough of those classes for our international students,” she said.

‘Shocking news’

Cynthia Larive, chancellor of the University of California, Santa Cruz (UCSC), told University World News on Wednesday that the ICE directive is “shocking and disappointing news for us”.

UCSC has around 2,000 international students, “some of them are in Santa Cruz still, some of them are in the United States still and some of them have returned home so the impacts may be different for different students. For the new students that we hope to welcome this fall – that’s another situation.”

She said the university had expected the exemption to continue in the fall.

“While we are still trying to understand all the details of the new ruling, it appears that students who have F-1 visa status at schools that have moved to a hybrid instruction model, which is what we are planning, might have to enrol in at least one in-person course in the four to remain or enter the United States. So we had already identified a handful of courses that we were planning to offer in person for that.”

And these included lab courses, field courses and performance courses. “But our primary purpose was on attention to health and well-being. We are now exploring options to expand some of these offerings that might help to meet the new requirements for our international students.”

She said a number of the university’s international students are in PhD and masters programmes where the major focus of their course is not on classroom learning but research. More clarity is needed on how research counts as a course.

“It’s just terrible that this announcement creates additional stress for our international students at a time when they need to be supported. Many international students have reached out to us to say they’re not sure what to do. They can’t go home even if they wanted to. Flights are restricted. It’s dangerous for them to travel; it’s much safer here. And I hope that we can help to accommodate them.”

She expects nationally there will be more legal challenges on multiple fronts, just as there were against the 2017 Muslim travel ban and the attempt to end the Deferred Action for Childhood Arrivals or DACA programme for undocumented immigrants who arrived in the country as children, which is not fully resolved yet.

“So we will be lending our support both within the UC system, the Association of American Universities and likely the Association of Public and Land-grant Universities and other American university organisations of which we are a member, in trying to lobby Congress but also to think about legal opportunities,” Larive said.