By Chris Villani

Law360 (July 13, 2020, 5:26 PM EDT) -- The Trump administration pushed back Monday against Harvard University and the Massachusetts Institute of Technology's challenge to its directive barring foreign students from the U.S. if institutions offer online-only instruction during the coronavirus pandemic, arguing that the policy is backed by black-letter law.

A little more than 24 hours before a hearing scheduled to argue the schools' preliminary injunction bid and amid a flurry of briefs supporting the suit and a separate suit filed in Massachusetts federal court by 18 state attorneys general, the federal government said it is simply enforcing the law on the books, which does not permit students to study online and stay in the U.S. on a F-1 or M-1 visa.

The July 6 directive was not a sudden, arbitrary decision, the government's brief argues, but instead a return to the law as written and a departure from the "leniency" exercised by U.S. Customs and Immigration Enforcement in March when it temporarily allowed foreign students to pursue their studies online during the crisis.

"The regulations governing the maintenance of nonimmigrant status for aliens present in the United States pursuant to an F visa, are settled and long-standing, and have required that students complete their program of study in person, rather than fully online or through distance education, for close to twenty years," the government argued, claiming that the suit seeks to "rewrite the black-letter requirements of the law and bind the enforcement authority of the federal government."

The government's brief argues that it could have made things a lot harder on both the schools and the students had it not considered how both might be affected by the new guidance. 

"Perhaps the agency would have completely rescinded its March 9, 2020 broadcast message and reverted back to enforcement of the black letter of the regulations, returning to business as usual as before the COVID-19 emergency," the brief states. "To have done so would have severely limited the options for schools, limiting F-1 students to count no more than one class or three credits per semester or term offered fully online or by distance education towards the full course of study requirement for maintaining their F nonimmigrant status."

Following ICE's March guidance saying the government would be flexible with in-person education requirements as long as the pandemic was ongoing, the July 6 directive was released hours after Harvard announced it would limit on-campus housing to 40% capacity and hold all courses online, while MIT announced a hybrid model. The schools sued on July 8, claiming their fall plans had been thrown into chaos by the policy shift, and on Friday received amicus support from 180 colleges around the country.

The schools argue that ICE issued the policy arbitrarily, without offering "any reasoned basis for the sudden and dramatic change of position." In doing so, the federal government did not consider the risks to foreign students in the U.S., who must, under the rule, arrange for last-minute international travel during a pandemic or transfer schools weeks before the semester's start and well after transfer deadlines, the suit says. Some students seeking to return to the U.S. for the fall semester have already been denied entry over the past week, they claim.

The schools also accused the Trump administration of using the rule to force universities to reopen and hold in-person classes.

Further adding to the confusion is a July 15 deadline imposed by the government for schools to let ICE know whether they will offer online-only classes, in-person instruction, or a hybrid of the two during the fall semester.

But the federal government argues that the directive was nothing more than a reminder that students have to leave the country if they violate the terms of their student visas.

"If students fail to maintain their nonimmigrant student status, they must depart or risk being placed in removal proceedings. This is not new," the brief states. "The regulation explicitly excludes 100% online course loads. Petitioners do not argue ICE should revert to the black letter of the regulation, but instead contest ICE's discretionary decision to temporarily adjust its enforcement posture while [the] nation is in the grips of the COVID-19 pandemic."

The government argues its policy shift is more carefully crafted than the suit would suggest, noting that nonimmigrant students can participate in a blend of online and in-person classes and exceed the previous maximum for the number of credit hours that can be pursued online while maintaining active Student and Exchange Visitor Program status.

The suit, the government says, is not likely to succeed on the merits.

"Petitioners do not explain how physical presence in the United States is required for one to participate in a 100% online learning experience," the brief states. "Nor do they explain how the lack of physical presence by their nonimmigrant students participating in the online programs would negatively impact other students, who are also participating in the online course, or the administration of their set curriculum."

Representatives from Harvard and MIT did not immediately respond to comment requests Monday. ICE declined to comment.

In addition to the two suits in Massachusetts federal court, both of which are before U.S. District Judge Allison D. Burroughs, other suits by schools around the country have popped up over the past week, including one on Friday by Johns Hopkins University and another filed the same day by a group of international law students at University of California Irvine.

Because of the July 15 deadline, Judge Burroughs has moved the case along speedily. After two hearings last week and the government's opposition on Monday, the two sides will spar in court Tuesday afternoon and she said she will rule on the injunction motion on Wednesday.

Harvard and MIT are represented by Ari Holtzblatt, Paul R.Q. Wolfson, Seth P. Waxman, Felicia H. Ellsworth, Mark C. Fleming and William F. Lee of Wilmer Cutler Pickering Hale and Dorr LLP.

The government is represented by Rayford A. Farquhar of the U.S. Attorney's Office for the District of Massachusetts.

The case is President and Fellows of Harvard College et al. v. U.S. Department of Homeland Security et al., case number 1:20-cv-11283, in the U.S. District Court for the District of Massachusetts.

--Additional reporting by Hailey Konnath and Suzanne Monyak. Editing by Alanna Weissman.

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