The rule change regarding SEVP did not consider the extraordinary circumstances COVID-19 has created for international students.
Without considering the extraordinary circumstances requiring online learning or providing the required notice-and-comment period for rulemaking, on July 6, SEVP rescinded its March 13 guidance relaxing the cap on online coursework so that international students could participate in remote learning implemented as a result of the pandemic—either in the US or abroad—while maintaining their visa status, despite the fact that the government has not ended its declaration of a national state of emergency.
The impact of the July 6 guidance is immediate and severe.
Under the new July 6 guidance, students attending schools operating entirely online may not take a full online course load and remain in the country. Additionally, F-1 and M-1 students who were outside of the US would not be allowed to enter the country. These students are being told to transfer to other institutions offering in-person instruction or leave the country, even though this late in the summer, it is highly unlikely students can apply for let alone successfully obtain such transfers. If students cannot maintain their full-time student status, they will lose their ability to access work allowances in the summer and fall 2021 because they are required to maintain their F-1 status for the full academic year preceding their access to practical training.
Many students face enormous and often insurmountable challenges to participating in online learning from their home countries.
Since the July 6 Directive was announced, Harvard has fielded hundreds of calls and e-mails from concerned students. As detailed in the students’ declarations, many students have limited or no access to the Internet in their home countries and will struggle to participate fully in classes that may be held throughout the night because of time zone differences. At Harvard, more than 4,000 students are studying on an F-1 visa; more than 1,000 of those F-1 visa students are from countries subject to “Do Not Travel” advisories; and more than 3,000 F-1 visa students are from countries with a time zone difference of six or more hours.
The July 6 guidance reflects an effort by the federal government to force universities to reopen in-person classes.
By all appearances, ICE’s decision reflects 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 July 6 guidance violates the Administrative Procedures Act.
The Harvard/MIT suit seeks a temporary restraining order and preliminary and permanent injunctive relief preventing the government from enforcing the policy announced in ICE’s July 6 Directive because it violates the Administrative Procedures Act in three ways: (1) The July 6 guidance failed to consider important aspects of the problem before the agency acted; (2) The July 6 guidance fails to offer any reasonable basis that could justify the policy; and (3) the July 6 guidance failed to provide the public with notice and the opportunity to comment on this rulemaking.