The lawsuit over whether foreign students will lose their F-1 nonimmigrant student visa status and will have to go home if their schools switch to online courses has been settled. The Trump administration agreed to reinstate a directive it issued in March that increased the number of online courses they can count on to meet the “full course of study” requirement to maintain their student visa status.
But students are still in danger of losing their status and having to go home, for the same reason that Harvard and MIT would likely win their lawsuit.
Background
Federal regulation, 8 CFR 214.2 (f) (6) (i) (G), restricts the number of online credit hours that foreign students can count toward meeting the “full course of study” requirement to one class or three credits per semester.
As the pandemic spread this spring and colleges and universities switched to online classes, the Trump administration attempted to avoid this problem by issuing a directive on March 13, 2020, which allowed foreign students to maintain their non-visa status. immigrant in the following situations:
- If your schools temporarily close, they will be allowed to maintain their status as long as they intend to resume their course of study when classes resume.
- If your schools temporarily close but offer online instruction or other alternative learning procedures, they will be allowed to temporarily count more classes online to meet the “full course of study” requirement than is permitted by student visa regulations.
- If your schools temporarily close but offer online instruction, they can maintain their status by taking online courses, even if they have left the United States and are taking online courses in another country.
The administration removed these generous online course provisions in a second directive issued on July 6, 2020. The second directive is more restrictive than the first, but much less restrictive than the federal regulation, which limits online courses to students. Foreigners may count toward meeting the “full course study” requirement for one class or three credits per semester.
It includes a hybrid provision that allows a foreign student to take more courses online than regulation allows if your school certifies that your program is not completely online and that you are taking the minimum number of online classes necessary to progress normally in your degree program. .
The media characterizes it as an attempt to remove the visas of international students taking online courses.
On July 8, 2020, Harvard and MIT filed a complaint in federal district court seeking a court order to prevent the administration from implementing the second directive.
The lawsuit ended abruptly six days later, when the district court judge announced that the parties had reached a resolution. The administration agreed to rescind the July 6 directive and reinstate the more generous March 13 directive.
It is not over yet
Harvard and MIT noted in their complaint that the way the restrictive July 6 directive was issued violated the Administrative Procedure Act (APA), letting the genie out of the bottle.
The complaint explains that the APA requires federal agencies to publish a notice of any proposed substantive changes to its “rules” in advance in the Federal Register and to give the public an opportunity to comment on the proposed change before it takes effect. .
According to the complaint, the July 6 directive is a “rule” in the APA sense because it was “designed to implement, interpret, or prescribe laws or policies …” and the administration failed to comply with the regulatory procedures of the APA when it issued this directive. Therefore, the court would have been required to overturn the July 6 directive.
And I think that is correct.
The problem is that this argument also applies to the more generous March 13 directive that the administration agreed to reinstate, and for the same reasons.
Consequently, he is likely to be vacated if someone challenges him in court, resulting in the reinstatement of regulation that limits online courses that foreign students can count on to meet the “full-course study” requirement to one class or three credits per semester.
The solution
The administration must follow the APA’s regulatory requirements and enact the March 13 guidelines as a federal regulation, which is what it should have done in the first place.
And this must be done as soon as possible.
Nolan Rappaport He was detailed to the House Judiciary Committee as an expert in executive immigration law for three years. He subsequently served as an immigration attorney for the Subcommittee on Immigration, Border Security and Claims for four years. Before working on the Judicial Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @ NolanR1 or in https://nolanrappaport.blogspot.com.
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