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Law360 (July 24, 2020, 9:09 PM EDT) -- U.S. Immigration and Customs Enforcement on Friday said that new foreign students are still barred from entering the U.S. if their colleges go fully online due to the COVID-19 pandemic, an announcement that comes a week after the Trump administration had pledged to rescind that directive.
Returning international students who attended classes during the spring semester may remain in the U.S. or return after a break, ICE said in an update to its guidance. But that privilege is not extended to incoming first-year undergraduate or graduate students, it said.
On July 14, the government abruptly vowed to do away with the July 6 directive that barred all international students from attending universities or colleges that had moved completely online for the fall semester. At the time, the Trump administration said that it would revert to its March 9 guidance, which allowed international students to remain in the U.S. even if their college or university opted for online-only instruction during the pandemic.
But as recently as this week, the federal government was still denying or putting on hold student visa applications that lacked evidence of in-person instruction, a coalition of 18 states challenging the policy told a Massachusetts judge on July 22. And ICE had not yet published anything rescinding policy, the states said, adding that further guidance will be needed to fully rescind the policy.
ICE unveiled that guidance Friday, saying it was indeed still denying visas to new students, though it said that denial was in accordance with its March guidance.
"Nonimmigrant students in new or initial status after March 9 will not be able to enter the U.S. to enroll in a U.S. school as a nonimmigrant student for the fall term to pursue a full course of study that is 100 percent online," ICE said. "Additionally, designated school officials should not issue a Form I-20 to a nonimmigrant student in new or initial status who is outside of the U.S. and plans to take classes … fully online."
ICE also clarified that new students would still be able to enter the U.S. if their schools offered a combination of online and in-person instruction.
A spokesperson for the Massachusetts Attorney General's Office said in a statement provided to Law360 on Friday that the office is "concerned that the Trump Administration has not yet fully implemented its commitment to return to a policy that recognizes that requiring in-person instruction would be harmful and senseless in the midst of a pandemic."
"We are monitoring the situation closely, together with our colleges, universities and students," the spokesperson said.
In another statement Friday, the University of Southern California said it strongly disagreed with the new guidance. The school has already informed students that it will not offer a full in-person academic program.
"We are exploring all legal options and are disappointed that the Department of Homeland Security has not made a more affirmative policy statement to offer clarity and flexibility to new students and universities during this global pandemic," USC said.
The Trump administration has faced a slew of suits over the measure.
On July 13, attorneys general from 18 jurisdictions — Massachusetts, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Wisconsin — sued to block the directive.
Harvard University and the Massachusetts Institute of Technology also filed a suit challenging the directive, and they were backed by business groups, advocacy organizations and hundreds of schools, including the full Ivy League.
The government initially argued that the policy was "black letter law" and well within the discretion of the executive branch.
But at a July 14 hearing in the Harvard and MIT case, a Massachusetts federal judge said the parties had a reached a deal to end the measure.
In the status report filed Tuesday, Massachusetts Attorney General Maura Healey said a Trump administration lawyer told them the government is "working expeditiously" on new guidance and implementing the agreement. Still, the lawyer didn't know when the guidance or directive would be published.
Representatives with Harvard and MIT did not immediately return requests for comment Friday.
The states in the Massachusetts suit are represented by Abigail Taylor, Elizabeth N. Dewar, Andrew J. Haile and Julie E. Green of the Massachusetts Attorney General's Office.
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 WilmerHale.
The federal government is represented by Rayford A. Farquhar of the U.S. Attorney's Office for the District of Massachusetts.
The cases are Commonwealth of Massachusetts et al. v. United States Department of Homeland Security et al., case number 1:20-cv-11311; and President and Fellows of Harvard College et al. v. U.S. Department of Homeland Security et al., case number 1:20-cv-11283, both in the U.S. District Court for the District of Massachusetts.
--Additional reporting by Brian Dowling and Chris Villani. Editing by Peter Rozovsky.
For a reprint of this article, please contact reprints@law360.com.
