COVID-19 note (March 26, 2020)
The USCIS Response to the 2019 Coronavirus page, which was last updated on 2/5/2020, contains this paragraph:
When requested, USCIS may provide special support for individuals who may be affected by natural or extreme circumstances. When applying for an extension or change of status due to a special situation that prevented your planned and timely departure, we may take into consideration how the special situation prevented your departure. Check our Special Situations webpage for more information."
The USCIS Special Situations webpage, in turn, was last updated on 10/25/2019, and offers only standard suggestions, such as:
- Standard applications for extension of stay or change of status
- Standard request for an application fee waiver
- Standard application for F-1 off-campus employment for "severe economic hardship caused by unforeseen circumstances beyond the student's control"
Those options always exist for an emergency or unexpected event. This is a general USCIS page to which USCIS and other agencies tend to direct the public any time there's an emergency. There is no indication that USCIS has tailored these "evergreen" options to respond in any special way to COVID-19 situations, although they do remain available as "case-by-case" options.
The Special Situations webpage also references the F-1 "Special Student Relief" benefit, but fails to mention that the benefit is available only if DHS publishes a Special Student Relief notice in the Federal Register to activate it for a particular group. No such notice has been published to cover COVID-19. In its March 16, 2020 letter to DHS, NAFSA asked DHS to issue a COVID-19 Special Student Relief notice, but DHS has not taken that action as of yet.
This primer on essential concepts of special student relief is an extract of content in the NAFSA Adviser's Manual 360.
Regulations allow DHS to suspend or alter rules regarding duration of status, full course of study, and employment eligibility, for specific groups of F-1 students from parts of the world that are experiencing emergent circumstances. This collection of benefits is known as "special student relief." [see (June 10, 1998), amending the Code of Federal Regulations governing F-1 duration of status at 8 CFR 214.2 (f)(5)(v), full course of study at 8 CFR 214.2(f)(6)(i)(F), and employment eligibility at 8 CFR 214.2(f)(9)(i) and (ii)]
The regulatory provisions are generic, and are activated only when DHS makes a finding of emergent circumstances, and publishes a notice in the Federal Register to define the specifics of what is to be suspended, and for whom, and the procedures for how to apply for any benefits that result from the suspension. DHS has not provided Special Student Relief for students impacted by COVID-19.
Special Student Relief notices published to date include the following, all of which have expired.
- Asian Economic Crisis of 1998 - functionally expired
- Original notice: A June 10, 1998 Notice of Suspension published in response to the Asian economic crisis of that period, which applied to students whose funding came from the following countries: Indonesia, South Korea, Malaysia, Thailand, and the Philippines. Although the June 10, 1998 Notice of Suspension [63 FR 31874 (June 10, 1998)] did not include an expiration of benefits date, given the requirement that only F-1 students who have been in the United States since June 10, 1998 could currently benefit from this provision, the number of students who would qualify should be nonexistent at this time.
- Hurricane Katrina - expired
- Original notice: A 2005 notice for F-1 students who were enrolled in academic institutions located in areas that were adversely affected by Hurricane Katrina. 70 FR 70992 (November 25, 2005). Benefit period: November 25, 2005 - February 1, 2006. Was not extended.
- Haiti - expired
- Original notice: 75 FR 56120 (September 15, 2010) set an initial benefit period from September 15, 2010 to July 22, 2011;
- 76 FR 28997 (May 19, 2011) extended benefits until January 22, 2013;
- 77 FR 59942 (October 1, 2012) extended benefits until July 22, 2014;
- 79 FR 11805 (March 3, 2014) extended benefits until January 22, 2016;
- 80 FR 51579 (August 25, 2015) extended benefits until July 22, 2017.
- Libya - expired
- Original notice: 76 FR 33970 (June 10, 2011) set an initial benefit period from June 10, 2011 - December 31, 2011.
- Syria - expired September 30, 2019
- Original notice: 77 FR 20038 (April 3, 2012) set an initial benefit period from April 3, 2012 to October 3, 2013;
- 78 FR 36211 (June 17, 2013) extended benefit period to March 31, 2015;
- 80 FR 232 (January 5, 2015) extended benefit period to September 30, 2016.
- 81 FR 62520 (September 9, 2016), extended benefit period to March 31, 2018 and expanded the eligibility pool to include F-1 students who were in the United States as of September 9, 2016.
- 83 FR 11553 (March 15, 2018), extended benefit period until September 30, 2019.
- Nepal - expired June 24, 2019
- Original notice: 80 FR 69237 (November 9, 2015) set an initial benefit period from November 9, 2015 until December 24, 2016 for Nepali F-1 students who were in the United States on April 25, 2015 and who were impacted by the earthquake that struck the Kathmandu Valley on April 25, 2015.
- 81 FR 95161 (December 27, 2016) extended benefit period until June 24, 2018.
- 83 FR 30453 (June 28, 2018) extended benefit period until June 24, 2019
It is important to understand that employment sourced under special student relief can only be done during the validity period of the SSR notice. Any extension of SSR-based employment would have to be granted before the expiration of the prior grant of SSR employment. If the renewal SSR employment is not granted before the expiration of the prior authorization, the student must stop working under that SSR employment benefit, until the renewal is approved. This is problematic especially when, as in the last two SSR extension notices for Nepal, there were gaps of several days between SSR segments, during which time a student is not covered by SSR benefits.
The benefits can be understood as a "package" consisting of on- or off-campus work authorization and authorization to reduce one's course load. The reduced course load benefit is only available to students who acquire work authorization through the notice, and is not available separately.
Essential Special Student Relief Concepts
In 1998, the F-1 regulations were changed to include special student relief (SSR) provisions, which are activated by a specific notice published in the Federal Register. At its core, special student relief is best understood as a suspension of certain rules regarding F-1 employment authorization and full course of study, rather than as separate, independent benefits.[63 Fed. Reg. 31872 (June 10, 1998)]
The SSR suspension notice in the Federal Register “activates” these regulatory provisions, and defines the specifics of what rules are to be suspended, for whom, and for how long. The notice also sets forth the procedures for applying for any benefits that result from the suspension.?? Since SSR benefits are firmly grounded in the F-1 student regulations, you should examine the underlying SSR regulatory provisions to better understand how an SSR Federal Register notice works to “suspend” some or all of the standard regulatory requirements governing F-1 duration of status at 8 C.F.R. § 214.2 (f)(5)(v), full course of study at 8 C.F.R. § 214.2(f)(6)(i)(F), and employment eligibility at 8 C.F.R. § 214.2(f)(9)(i) and (ii).
Special student relief regulations for F-1 students relating to employment
8 CFR 214.2(f)(9)(i), the on-campus employment provision of the F-1 regulations, contains the following SSR language:
… Employment authorized under this paragraph must not exceed 20 hours a week while school is in session, unless the Commissioner suspends the applicability of this limitation due to emergent circumstances, as determined by the Commissioner, by means of notice in the Federal Register, the student demonstrates to the DSO that the employment is necessary to avoid severe economic hardship resulting from the emergent circumstances, and the DSO notates the Form I-20 in accordance with the Federal Register document….
8 CFR 214.2(f)(9)(ii)(A), the off-campus employment provision of the F-1 regulations, contains the following SSR language.:
(A) General. An F-1 student may be authorized to work off-campus on a part-time basis in accordance with paragraph (f)(9)(ii)(B) or (C) of this section after having been in F-1 status for one full academic year provided that the student is in good academic standing as determined by the DSO. Part-time off-campus employment authorized under this section is limited to no more than twenty hours a week when school is in session. A student who is granted off-campus employment authorization may work full-time during holidays or school vacation. The employment authorization is automatically terminated whenever the student fails to maintain status. In emergent circumstances as determined by the Commissioner, the Commissioner may suspend the applicability of any or all of the requirements of paragraph (f)(9)(ii) of this section by notice in the Federal Register.
Notes on the above two provisions
- Special student relief employment benefits are established only in relation to on-campus employment under 8 CFR 214.2(f)(9)(i) and off-campus employment authorization under 8 CFR 214.2(f)(9)(ii). SSR employment benefits do not extend to any kind of practical training, which is authorized under 8 CFR 214.2(f)(10), or to international organization work authorization, which is authorized under 8 CFR 214.2(f)(9)(iii).
- The off-campus SSR employment provision incorporates by reference 8 CFR 214.2(f)(9)(ii)(C), relating to off-campus employment authorization for severe unforeseen economic hardship. The other provision cited in this paragraph, 8 CFR 214.2(f)(9)(ii)(B), relates to the now-defunct employer-attestation provision.
Special student relief regulations for F-1 students relating to duration of status and full course of study
8 CFR 214.2(f)(5)(v): duration of status
(v) Emergent circumstances as determined by the Commissioner. Where the Commissioner has suspended the applicability of any or all of the requirements for on-campus or off-campus employment authorization for specified students pursuant to paragraphs (f)(9)(i) or (f)(9)(ii) of this section by notice in the Federal Register, an affected student who needs to reduce his or her full course of study as a result of accepting employment authorized by such notice in the Federal Register will be considered to be in status during the authorized employment, subject to any other conditions specified in the notice, provided that, for the duration of the authorized employment, the student is registered for the number of semester or quarter hours of instruction per academic term specified in the notice, which in no event shall be less than 6 semester or quarter hours of instruction per academic term if the student is at the undergraduate level or less than 3 semester or quarter hours of instruction per academic term if the student is at the graduate level, and is continuing to make progress toward completing the course of study.
8 CFR 214.2(f)(6)(i)(F): full course of study
(F) Notwithstanding paragraphs (f)(6)(i)(A) and (f)(6)(i)(B) of this section, an alien who has been granted employment authorization pursuant to the terms of a document issued by the Commissioner under paragraphs (f)(9)(i) or (f)(9)(ii) of this section and published in the Federal Register shall be deemed to be engaged in a "full course of study" if he or she remains registered for no less than the number of semester or quarter hours of instruction per academic term specified by the Commissioner in the notice for the validity period of such employment authorization.
Notes on the above two provisions
These two provisions establish that students who have been granted SSR on-campus employment authorization under 8 CFR 214.2(f)(9)(i) or SSR off-campus employment authorization under 8 CFR 214.2(f)(9)(ii) will be considered to be pursuing a full course of study and maintaining duration of status as long as they are registered for the minimum number of credit hours specified in the special student relief suspension notice, which by regulation can be no fewer that 6 semester or quarter hours of instruction at the undergraduate level or 3 semester or quarter hours of instruction at the graduate level. These provisions establish two important regulatory limits on the SSR reduced courseload benefit:
(C) Study in a postsecondary language, liberal arts, fine arts, or other non-vocational program at a school which confers upon its graduates recognized associate or other degrees or has established that its credits have been and are accepted unconditionally by at least three institutions of higher learning which are either: (1) A school (or school system) owned and operated as a public educational institution by the United States or a State or political subdivision thereof; or (2) a school accredited by a nationally recognized accrediting body; and which has been certified by a designated school official to consist of at least twelve clock hours of instruction a week, or its equivalent as determined by the district director in the school approval process;
(D) Study in any other language, liberal arts, fine arts, or other nonvocational training program, certified by a designated school official to consist of at least eighteen clock hours of attendance a week if the dominant part of the course of study consists of classroom instruction, or to consist of at least twenty-two clock hours a week if the dominant part of the course of study consists of laboratory work; or
(E) Study in a curriculum at an approved private elementary or middle school or public or private academic high school which is certified by a designated school official to consist of class attendance for not less than the minimum number of hours a week prescribed by the school for normal progress toward graduation.
- First, the SSR reduced course load benefit is only available to a student who “has been granted employment authorization pursuant to the terms of” an SSR notice of suspension published in the Federal Register. And so these two benefits are linked, as a “package;” the basis for reducing course load is the need to work, and so you can’t just receive a reduced course load without getting the employment authorization.
- Second, the SSR reduced course load benefit only applies to students whose “full course of study” requirements are governed by 8 CFR 214.2(f)(6)(i)(A) [“Postgraduate study or postdoctoral study at a college or university, or undergraduate or postgraduate study at a conservatory or religious seminary”] or 8 CFR 214.2(f)(6)(i)(B) [“undergraduate study at a college or university”]. That would seem to exclude students from the reduced course load benefit if their full course of study requirements stem from paragraphs (C) through (E) of that section, namely:
- ESL students. Notwithstanding the above, the Student and Exchange Visitor Program's (SEVP) June 16, 2011 Broadcast Message 1106-01A clarified that F-1 Libyan students who attend English as a Second Language (ESL) programs were eligible for special student relief. That guidance applied to the Libyan special student relief notice only. NAFSA has inquired with SEVP as to whether similar guidance will be issued for Syrian ESL students.
- In its suspension notices granting special student relief, DHS has made clear that the existence of the SSR reduced course load benefit does not mean that a school is legally obliged to allow a student to take a reduced course load "if the reduction would not meet the school's minimum course load requirement for continued enrollment." However, if a school disallows reduced course load on this basis its "minimum course load requirement for enrollment "must be established in a publicly available document (e.g. catalog, Web site, or operating procedure), and it must be a standard applicable to all students (U.S. citizens and foreign students) enrolled at the school." See, for example, the June 10, 2011 suspension notice for Libyan students.