ICE Relaxes Student Visa Rules As Classes Move Online

By Suzanne Monyak
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Law360 (March 10, 2020, 6:30 PM EDT) -- U.S. Immigration and Customs Enforcement said in guidance released Monday that it will be "flexible" with visa rules for international students as universities close and move courses online to mitigate the spread of the virus known as COVID-19.

ICE's Student and Exchange Visitor Program, which runs the student visa programs, said in the three-page guidance that it "intends to be flexible with temporary adaptations" to curriculums as schools across the U.S., including New York University, Harvard University and the University of Washington, have shut their doors and sent students home to continue their courses remotely.

Foreign students on F visas for academic studies can only take one course online per semester to maintain legal status, while students on M visas for vocational training are barred from taking any online classes.

But ICE said it will forgive those requirements temporarily in light of the public health crisis so long as universities provide written notice within 10 business days of deciding to change its practices.

Immigration attorneys generally praised the guidance for offering some temporary reprieve to international students, who could face heavy immigration penalties if they fall out of status and rack up too many days of illegal time in the U.S.

"It is very helpful, and it's a great first step to provide guidance to the institutions," said Heather Stewart, counsel and director of immigration policy at NAFSA: Association of International Educators, which had reached out to ICE regarding the issues facing foreign students.

Elizabeth Goss of Goss Associates, a Boston-based immigration attorney who specializes in student visa issues, agreed, adding that the memo addresses "the most pressing issue."

She had organized a meeting of international student advisers on Monday ahead of the guidance's release, where she said people were asking "what if?" as the schools prepared to close.

"They've done the necessary thing here, which is good," Goss told Law360 on Tuesday about ICE's guidance.

The U.S. Department of State, which oversees the J-1 exchange visitor program, has also issued guidance on its own to shield students participating in the program from penalties caused by the virus, including by allowing students who have yet to enter the U.S. to push off their start dates.

ICE's memo didn't address student visa repercussions should universities completely shut down, rather than move courses online, and an ICE representative didn't respond to a request for more information. 

ICE also encouraged foreigners working in the U.S. through Optional Practical Training, which allows recent graduates of U.S. schools to work in the U.S. for at least a year, to work with their companies to find "alternative ways to maintain employment," such as through teleworking.

However, a work interruption for foreigners on OPT could present issues for people with jobs that don't permit remote work, such as engineers, according to David Ware of Ware Immigration.

Speaking to Law360 before the ICE guidance was published, Ware also said the government should waive the deadlines for seniors to apply for OPT, an issue that isn't addressed in the Monday memo. Those OPT applications must be filed no earlier than 90 days before students' start dates for work and no later than 60 days after graduation.

While international students may not need to worry about unintentionally violating their visa conditions as a result of the global virus outbreak, the universities' closures could present hurdles for those who can't return home.

At Harvard, for example, students were instructed Tuesday to move out of on-campus housing by Sunday, but senior students with pending OPT applications, for example, can't travel internationally.

A Harvard spokesperson didn't respond to a request for comment on whether international students facing travel restrictions could stay in campus housing, but said on its website that some students may remain on campus in "extenuating circumstances."

Stewart said that NAFSA, the international educators group, is "working tirelessly" to respond to individual international students' concerns.

But there are still some "dangling questions," said Rachel Banks, director of public policy at NAFSA. "We don't know how this issue will evolve over the next months, or next two months," she said.

For example, if universities are still closed by the end of the academic year, it could pose challenges for foreign students who have graduated from universities but can't return home, she said.

Banks also noted that the consular offices in China and Italy — countries that have been hit particularly hard by the virus — have limited operations to emergency services only. If those offices' limitations continued into the summer, students from China, which sends the most students to the U.S., would be unable to get their student visas approved.

Those are "just questions that are already coming to mind as we map out worst-case," Banks said. "We just have to wait and see."

--Editing by Bruce Goldman.

Correction: An earlier version of this story misstated the name of an agency. The error has been corrected. 

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